2015-00186194-CU-OE

Michael Asberry vs. County of Sacramento

Nature of Proceeding: Motion to Compel Special Interrogatories

Filed By: Telfer, Jill P.

** If any party requests oral argument, then at the time the request is made, the

requesting party shall inform the court and opposing counsel of the specific issue(s) on which oral argument is sought. **

Plaintiff Michael Asberry’s (Asberry) motion for an order compelling further responses to his Special Interrogatories Nos. 21 and 22 (Set 6) is GRANTED.

This case presents an employment dispute. The employer and sole defendant is Defendant County of Sacramento (County). Beginning in 2005, the County employed Asberry in its Department of Waste Management Recycling. The County terminated Asberry in 2011.

In his first amended complaint, Asberry pleads causes of action under the FEHA and the CFRA. He alleges among other things that the County discriminated against him based on his race. (Asberry is African-American.) He alleges he was disciplined after taking medical leave to care for his wife, but that non-African-American employees were not similarly disciplined. He further alleges that the County failed to correct its employees illegal practices after he complained. And he alleges that reasons offered for his discipline were pretextual.

Asberry’s Special Interrogatories Nos. 21 and 22 focus on two nonparty, former co-employees. Richard Johnson (Johnson) is African-American, and Asberry desires personnel information about him to serve as “me too” evidence of discrimination. The second former co-worker, Stephen Robinson, (Robinson) is Caucasian. Asberry seeks information about him to demonstrate preferential treatment.

Special Interrogatories Nos. 21 and 22 read, respectively:

Please identify the dates, circumstances, decision makers and type of discipline for each discipline Richard Johnson received from Defendant. This information will be the subject of the protective order entered into by the parties.

Please identify the dates, circumstances, decision makers and type of discipline for each discipline Stephan Robinson received from Defendant. This information will be the subject of the protective order entered into by the parties.

The County objected that the interrogatories are vague, ambiguous and overbroad; burdensome; not relevant or reasonably likely to yield discovery of admissible evidence; and protected by rights of privacy. Counsel met and conferred, but they reached an impasse, and this motion followed.

Robinson waived his right of privacy in his personnel information. Consequently, to the extent the County objected based on Robinson’s right of privacy, the objection lacks merit. The County’s objections based on vagueness, ambiguity, overbreadth, relevance and the unlikelihood the requests will yield discovery of admissible evidence lack merit as well.

Despite Robinson’s privacy waiver, the County argues obtaining information responsive to Request No. 22, and in particular the identities of all decision makers vis -a-vis discipline, would be unduly burdensome. The County argues multiple individuals provide input into disciplinary decisions, and a similar investigation it

already performed in this case was burdensome. The court finds any burden in tracking down decision-maker information as to Robinson (as well as Johnson) will not be so burdensome as to warrant an order excusing the County from responding. That Robinson and Johnson were already deposed does not alter the outcome. Nor does the fact that the County produced documents from Robinson’s personnel file. Hence, the objections on grounds of undue burden are overruled.

Finally, Johnson did not waive his right of privacy in his personnel information, and the County asks the court to sustain its objection to Special Interrogatory No. 21 on that basis. The County argues that Johnson and Asberry are not so similarly situated as to warrant discovery of Johnson’s disciplinary history.

The court disagrees. Asberry has a compelling interest in discovering information supporting his claim of race-based discrimination. Evidence of any differential discipline, as well as evidence of race-based animus, are directly relevant to Asberry’s case, and Request No. 21 is narrowly tailored to that end.

The court notes Asberry’s understanding that private personnel information is subject to the parties’ stipulated protective order on file.

No later than 2/7/18, the County shall serve verified further responses, without objections, to Asberry’s Special Interrogatories Nos. 21 and 22 (Set 6).