1

Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

PLAINTIFF'S THIRD MOTION TO COMPEL

PRODUCTION OF DOCUMENTS

AND ANSWERS TO INTERROGATORIES

1. Plaintiff's First Request for Production of Documents and

First Interrogatories were served on the Defendants via

first class mail on June 20, 2002.

2. On September 6, 2002, Plaintiff filed a Motion to Compel

Answers to Interrogatories and Production of Documents.

3. On September 9, 2002, Plaintiff received Defendants’

objections and partial responses to her interrogatories and

document requests.

4. On September 10, 2002, this Court entered an Order

compelling the Defendants to serve full and complete answers

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to Plaintiff’s interrogatories and to produce all documents

responsive to Plaintiff’s requests within ten (10) days.

5. The Defendants have failed to fully comply with this Court’s

Order dated September 10, 2002.

6. The following is a list of the pertinent interrogatories

served June 20, 2002, and Defendants’ responses thereto:

“8. For each of your employees during the years

1999 and 2000, between the levels of Project

Supervisor and Regional Director (inclusive)

please list such employee’s race, salary/rate

of pay, benefits, years of employment with

Defendant and any degrees held.”

Response:

“See Allen-Yost List attached and please note

that all information therein is strictly

confidential”

“16. State in complete factual detail the reasons

for your termination of the employment of the

Plaintiff, and identify each policy or

directive allegedly violated by Plaintiff and

the manner in which it was violated.”

Response:

“See Defendant’s response to Plaintiff’s

Request for Production of Documents”

“17. Identify all of the job qualifications for

the positions of Project Supervisor, Program

Coordinator and Coordinator of Kinship

Services in effect at any time during 2000,

and attach any written policies or job

descriptions setting forth the same.”

Response:

“See Defendant’s response to Plaintiff’s

Request for Production of Documents”

7. Defendants made no objections to Plaintiff’s specific

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interrogatories, just general objections. A true and

correct copy of the Defendants’ Answers to Interrogatories

is attached hereto as Exhibit A.

8. To date, the Defendants have failed to provide Plaintiff

with salary/rate of pay data as of the relevant time frame

(spring-fall 2000), as requested in interrogatory 8.

9. To date, Defendants have failed to provide a detailed

description of the reasons for terminating Ms. Sweigard’s

employment as requested in interrogatory 16.

10. To date Defendants have failed to identify all of the job

qualifications for the positions of Project Supervisor in

effect prior to the revision of the Project Supervisor job

description in October 2000, as requested in interrogatory

17.

11. The following is a list of the pertinent document requests

served June 20, 2002, and Defendants’ responses thereto:

“1. All documents requested to be identified in

Plaintiff's First Interrogatories.”

Response:

“All documents identified in Defendants’

Answers to Plaintiff’s Interrogatories are

attached hereto.”

“2. All documents identified in Defendant's

initial disclosure statement.”

Response:

“All documents identified in Defendants’

initial disclosures are attached hereto, with

the exception of the personnel files of

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 3 of 20
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employees other than Plaintiff. The

personnel files contain several thousand

pages of documents. Plaintiff is welcomed to

review them at the office of Defense counsel. 

Alternatively, Defendants will have all of

the documents copied at Plaintiff’s expense

(25 cents per page).”

“3. All documents upon which you will rely in

your defense of this matter.

Response:

“See 1-2 above.”

“6. All documents relating to the defendant’s

investigation of the conduct of Plaintiff and

her termination in or about September through

October 2000.”

Response:

“See Defendants’ Answer to Plaintiff’s PHRC

Complaint and the documents attached thereto,

together with the “data and documents” filed

by Defendants with the PHRC pursuant to 16

Pa. Code § 42.43.”

“7. All documents or records in the possession or

control of Defendant concerning any

investigations related to Plaintiff’s

complaints about discrimination or

retaliation.

Response:

“See No. 6 above.”

“9. Job Descriptions and Qualifications. All job

descriptions and documents describing job

qualifications for employment with Defendant

in effect in 1999 and 2000.”

Response:

“Objection. Overbroad.”

“10. Policies. All employment policies effective

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 4 of 20
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in 2000 relating to the claims and defenses

in this matter, including, without

limitation, all policies concerning

promotions, hiring, termination of

employment, discipline, and posting of new

job openings or job vacancies.”

Response:

“See No. 6 above.”

“11. Any and all documents that relate to the

allegations of discrimination and retaliation

made by Laurie E. Sweigard against Defendant.

Response:

“See No. 6 above.”

12. When they served their responses to Plaintiff’s First

Request for Production of Documents, the Defendants raised

no objections to the pertinent document requests (except as

set forth in response to #9 above). A true and correct copy

of the Defendants’ Answers to Requests for Production of

Documents is attached hereto as Exhibit B.

13. Plaintiff contends that the one objection (#9) was untimely

and contrary to this Court’s Order dated September 10, 2002. 

In any event, since the qualifications for promotions are a

central issue in this case, the request is not overbroad.

14. In the deposition of Vivian Melvin, Defendants’ Director of

Human Resources, and a member of senior management, it was

revealed that although the Defendants had failed to produce

any job description for the position of Project Supervisor

as requested in interrogatory 17, and claimed to be unable

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 5 of 20
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to locate the same, Ms. Melvin believed she had a copy of

the one that was missing from her personnel file. (Exhibit

C, Deposition of Melvin, pp. 76-77). To date the Defendants

have not produced this document which is reasonably within

its control, despite the fact that it is requested in

Interrogatory 17 and Document Requests 9 and 10.

15. In the depositions of James Haley and Lauren Leap, both

former Regional Directors of Defendants, it was revealed

that there exists (at least as of June 2002) a personnel

policy manual containing, inter alia, position descriptions. 

To date this document has not been produced even though this

document is requested in Document Requests 9 and 10. (The

Depositions of Leap and Haley have not yet been

transcribed).

16. In the depositions of Carolyn Eberwein (Defendants’ CEO),

and Janet Haag (Defendants’ Director of Human Resources), it

was revealed that the Defendants had failed to search

through the their files for, inter alia, supervision meeting

notes between certain key witnesses (supervision meeting

notes between Melvin and Haley, Haley and Eberwein, 

Eberwein and Haag, and Eberwein and Sweigard), and notes of

Regional Director meetings, attended by the CEO. (Exhibit D,

Deposition of Haag, pp. 81-82, 89-90; The deposition of

Eberwein has not yet been transcribed). These documents

fall within Document Requests 6, 7 and 11.

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 6 of 20
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17. The regional Director meeting notes are potentially of great

relevance to Plaintiff’s reverse race discrimination claim

because at least two of Defendants’ former Regional

Directors, Cynthia Metraux and Lauren Leap, testified that

at one or more Regional Director’s meetings, they discussed,

inter alia, the company’s need to promote and hire more

African American employees. (Exhibit F, Deposition of

Cynthia Metraux, pp. 41-42)(The testimony of Lauren Leap has

not yet been transcribed). To the best recollection of the

undersigned, Regional Director Lauren Leap testified that,

at least as of the time of her resignation in September

2001, her notes of Regional Director meetings remained in a

file in her former office as company property. (The

testimony of Lauren Leap has not yet been transcribed).

18. In addition, an issue has arisen concerning the company’s

requests for waiver of an applicable county requirement that

persons who supervise social workers or case workers dealing

with children and youths have either masters degrees or

approval/waivers from the applicable county agency. The

personnel files produced by Defendants were missing waiver

request letters for Vickie Melvin, Johnny Allen, Genevie

Brown, and the waivers obtained or in effect for Johnny

Allen, Genevie Brown, Derrick Rose and Michelle TaylorBradley between 1998 and 2000 (or thereafter). Although

testimony has suggested that these waivers were obtained at

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 7 of 20
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some point, the applicable documentation has never been

produced. These documents are within the purview of

Document Requests 9, 10 and 11, and should have been

included in Defendants’ initial disclosures.

19. Finally, Defendants have taken the position that although at

the time of the promotions at issue herein all of

Defendants’ employees holding the specific title of Project

Supervisor were African American, there had been two or

three non-African American employees who held this title at

some time in the past. (Exhibit C, Deposition of Melvin, p.

82; Exhibit F, Deposition of Jenkins, p. 17; Exhibit D,

Deposition of Haag, pp. 87-89). Defendants have contended

that there were additional non-African American employees

who held substantially equivalent positions. Despite these

defenses, the Defendants have neither identified nor

produced the relevant personnel files.

20. By letters dated September 15, 2002, September 17, 2002, and

October 4, 2002, Plaintiff’s counsel specified

interrogatories and document requests which had not been

adequately answered. (Exhibits G, H and I).

21. On September 20, 2002, Defense counsel faxed a letter to

Plaintiff’s counsel (dated September 19, 2002) supplementing

certain answers and committing to provide certain additional

documents and information. (Exhibit J).

22. On October 7, 2002, Defense counsel faxed a letter in

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response to Plaintiff’s October 4, 2002 letter in which the

Defendants committed to voluntarily produce or make

available to Plaintiff all of the materials/information

requested . . . [in the October 4th letter] -- if they are

available and accessible. To date, the above documents and

information have not been made available. (Exhibit K).

23. Plaintiff has patiently awaited answers to the

interrogatories and production of the documents set forth

above.

24. The documents requested and information requested is highly

relevant and potentially critical to proving her claim.

25. Plaintiff has filed this motion despite the assurance set

forth in Defense counsel’s October 7th letter because of the

continued delay in Defendants’ responses, and this Court’s

Scheduling Order dated July 9, 2002 setting the deadline for

completion of discovery as October 21, 2002.

26. Plaintiff’s Motion for an extension of the applicable

deadlines remains outstanding.

27. Plaintiff respectfully submits that this Motion was

necessitated by the Defendants’ failure to comply with her

discovery requests in the first instance, and with this

Court’s September 10, 2002 Order thereafter.

28. Plaintiff's counsel hereby certifies that he has made a good

faith effort to resolve this discovery dispute with Defense

counsel as required by Fed.R.Civ.P. 37(a)(2)(B) and Local

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 9 of 20
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Rule 26.1(f), however, such efforts have been unsuccessful.

WHEREFORE, the Plaintiff respectfully requests this

Honorable Court to grant her Motion, Order the Defendants to

produce all four of the documents in question, and pay for the

counsel fees and costs incurred in preparing this motion and

Plaintiff’s prior motions to compel.

Date: October 21, 2002 

JOSEPH A. HIRSCH, ESQ.

Attorney for Plaintiff

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 10 of 20
Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

Certificate of Service

I, Joseph A. Hirsch, Esq., hereby certify that on this date,

I served a true and correct copy of the Plaintiff’s Third Motion

to Compel Production of Documents and Answers to Interrogatories,

and Plaintiff’s Memo of Law in support thereof upon Peter D.

Bludman, Esq., counsel for Defendants, at Margolis Edelstein, The

Curtis Center, 4th Floor, Independence Square West, Philadelphia,

PA 19106-3304, via first class mail, postage prepaid.

Date: 

JOSEPH A. HIRSCH, ESQUIRE

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 11 of 20
Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

O R D E R

AND NOW, this day of , 2002,

upon consideration of the Plaintiff’s Third Motion to Compel

Production of Documents and Answers to Interrogatories, it is

hereby ORDERED that the Plaintiff's motion is GRANTED.

Within days after the date of this Order, the

Defendants shall fully respond to the following Document Requests

and Interrogatories:

Interrogatories: 8, 16 and 17

Document Requests: 1, 2, 3, 6, 7, 9, 10, and 11

Defendants shall also produce the following documents:

1. Defendants’ Personnel/Employment Policy Manual,

including all job descriptions.

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 12 of 20
2. The job description signed by Vivian Melvin for

the position of Project Supervisor.

3. The Supervision meeting notes between Melvin and

Haley, Haley and Eberwein, Eberwein and Haag,

Leap and Jenkins and Eberwein and Sweigard for all

supervision meetings during 1999 and 2000 .

4. All notes of Regional Director meetings occurring

during 1999 and 2000.

5. The waiver request letters for Vickie Melvin,

Johnny Allen, Genevie Brown, and the letters

granting waivers for Johnny Allen, Genevie Brown,

Derrick Rose and Michelle Taylor-Bradley between

1998 and the present.

6. The personnel files of all Project Supervisors or

employees with substantially equivalent positions.

In the event that any or all of the responsive documents no

longer exist, Defendants shall so certify.

It is hereby FURTHER ORDERED that Defendant shall pay to

Plaintiff attorneys fees and costs in the amount of $ 

incurred in preparing and prosecuting this Motion and Plaintiff’s 

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 13 of 20
Motions to Compel.

BY THE COURT

 

, J.

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 14 of 20
1 Defendant also sometimes referred to this position as

Quality Assurance Specialist or Program Analyst.

1

Joseph A. Hirsch, Esq.

Atty. Id. No. 66640

HIRSCH & HIRSCH

110 Bala Avenue

Third Floor

Bala Cynwyd, Pennsylvania 19004

Telephone (610) 660-9955 Attorney for Plaintiff

 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LAURIE E. SWEIGARD :

Plaintiff : CIVIL ACTION NO.

: 02-2755

V. :

:

CHOICE SERVICES INTERNATIONAL, :

INC., ET AL :

Defendants :

PLAINTIFF'S MEMORANDUM OF LAW

IN SUPPORT OF

PLAINTIFF’S THIRD MOTION TO COMPEL

I. FACTUAL AND PROCEDURAL HISTORY

The Plaintiff, Laurie E. Sweigard, was formerly employed by

Defendants as Quality Assurance Manager.1

During the course of her employment with Defendants, the

Plaintiff became aware of racially discriminatory practices in

the hiring, promotion and compensation of Defendants’ African

American employees. On or about May 18, 2000, Defendants

announced the promotion of four (4) African American employees to

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 15 of 20
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positions for which they did not possess the objective

qualifications. The job openings were not posted internally in

accordance with company practices.

Plaintiff attempted to address her concerns over the

promotions with management, including, inter alia, Regional

Director James Haley, Human Resources Director Janet Haag, and

CEO Carolyn Eberwein on a series of occasions between September

26, 2000 and October 13, 2000. As a result, she was repeatedly

and severely reprimanded by Eberwein.

On October 4, 2000, when Plaintiff had addressed her

concerns directly to Human Resources Director Janet Haag, she was

informed that the promotions were based on the “ethnicity” of the

employees, and Haag labeled the promotions “affirmative action.” 

Haag further advised Plaintiff that there had been discussions of

increasing Ms. Sweigard’s job responsibilities and promoting her,

but that now this possibility was being called into doubt because

of her questioning of the aforesaid promotions.

CEO Carolyn Eberwein had inflicted the harshest reprimands

when she learned that Plaintiff had discussed her concerns over

the race based promotions with management and contacted the PHRC.

Ultimately, on October 16, 2000, Defendants fired Plaintiff

for allegedly discussing personal issues during work hours.

On or about October 20, 2000, Plaintiff filed a complaint

with the Pennsylvania Human Relations Commission.

On May 8, 2002, Plaintiff commenced this action alleging

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 16 of 20
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race discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964 (as amended)(42 U.S.C. § 2000e, et

seq.)(“Title VII”), Section 1981 of the Civil Rights Act of 1866

(42 U.S.C. § 1981)(“Section 1981") and the Pennsylvania Human

Relations Act (“PHRA”).

II. ARGUMENT

This Court’s Order dated September 10, 2002 required the

Defendants to produce all documents responsive to Plaintiff’s

requests and fully answer Plaintiff’s interrogatories within ten

(10) days. Defendants have failed to do so. Accordingly, the

Defendants have failed to comply with this Court’s Order, and

Plaintiff’s Third Motion should be granted.

The Defendants have waived any objections by failing to

assert them in a timely fashion. Under Rule 33(b)(4) of the

Federal Rules of Civil Procedure, a party responding to

interrogatories is required to state all grounds for objections

with specificity. Fed.R.Civ.P. 33(b)(4). “Any ground not stated

in a timely objection is waived unless the party’s failure to

object is excused by the court for good cause shown.” Id. Rule

34(b) also requires timely and specific responses to Requests for

Production of Documents. Failure to timely respond may subject

the party to an Order under Rule 37(a).

Thus, Defendant has waived any objections not specifically

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 17 of 20
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and timely raised in its Answers to Interrogatories and Response

to Plaintiff’s Request for Production.

In the alternative, Defendants’ Objection to document

request 9 should be overruled as improper. Plaintiff's

interrogatories and document requests seek information which is

relevant to, inter alia, the merits of Plaintiff’s claim of race

discrimination and/or are designed to lead to the discovery of

admissible evidence concerning the same. The Plaintiff’s

discovery requests are thus proper under the Federal Rules of

Civil Procedure, and Plaintiff's Motion should be granted.

Under Rule 26(b) of the Federal Rules of Civil Procedure,

discovery may be obtained “regarding any matter, not privileged,

that is relevant to the claim or defense of any party. . . . 

Relevant information need not be admissible at the trial if the

discovery appears reasonably calculated to lead to the discovery

of admissible evidence.” Fed.R.Civ.P. 26(b)(1). The United

States Supreme Court has held that the rules concerning discovery

“are to be accorded a broad and liberal treatment to effect their

purpose of adequately informing the litigants in civil trials.” 

Herbert v. Lando, 441 U.S. 153, 177 (1979). Although Rule 26

limits discovery to information that is relevant or reasonably

calculated to lead to the discovery of admissible evidence, 

“‘relevant’ has been construed broadly to encompass any

matter that bears on, or that reasonably could bear on

any issue that is or may be in the case . . . . 

Consistently with the notice-pleading system

Case 2:02-cv-02755-JCJ Document 13 Filed 10/21/2002 Page 18 of 20
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established by the Rules, discovery is not limited to

issues raised by the pleadings, for discovery itself is

designed to help define and clarify the issues . . . . 

Nor is discovery limited to the merits of a case, for a

variety of fact-oriented issues may arise during the

litigation that are not related to the merits.” 

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

In this case, Plaintiff has alleged that the Defendant

promoted employees who lacked the requisite objective

qualifications on the basis of race. The Defendant contends that

the employees were qualified and that the promotions were not

based on race. Thus, the Defendants’ employment policies,

written (and unwritten) job qualifications, and the personnel

files of the other employees in the relevant job classifications

(comparators) are relevant to the issues in this case. 

Accordingly, the Plaintiff’s discovery requests are reasonably

calculated to lead to the discovery of admissible evidence, and

are proper under the federal Rules of Civil Procedure.

III. CONCLUSION.

For the foregoing reasons, Plaintiff’s Motion should be

granted.

Respectfully submitted,

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Date: 

JOSEPH A. HIRSCH, ESQUIRE

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