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Johnson v. Wendy's Restaurant

December 7, 2006


The opinion of the court was delivered by: Magistrate Judge Norah McCann King


This is an employment action in which plaintiff, who is proceeding without the assistance of counsel, alleges that her work hours were reduced and she was eventually terminated in retaliation for having complained of gender harassment and race discrimination at the workplace. Plaintiff asserts her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5 ("Title VII"). With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on Defendant's Motion to Dismiss. Doc. No. 121. In that motion, defendant asks that the action be dismissed under F.R. Civ. P. 37 because plaintiff's persistent refusal to participate in the discovery process. For the reasons that follow, defendant's motion is GRANTED.


Plaintiff's employment was terminated by defendant on April 26, 2005. Amended Complaint at 3. Plaintiff filed an employment discrimination charge with the Equal Employment Opportunity Commission and was issued a notice of the right to sue on October 20, 2005. Id. at 2. On November 23, 2005, plaintiff filed this action. Because the details of the progress of the litigation are relevant to the resolution of defendant's motion, the Court will review those details on some depth.

On March 9, 2006, defendant properly noticed plaintiff's deposition to take place in Athens, Ohio (where plaintiff resides), on April 25, 2006, Doc. No. 15. Plaintiff asked that the deposition be held in Franklin County, Ohio, Doc. No. 17, and defendant voluntarily agreed to that request, filing an amended notice scheduling plaintiff's deposition for April 26, 2006. Doc. No. 18.

Plaintiff responded to defendant's written discovery requests in early April. See Doc. No. 28. After a discovery conference addressing the insufficiency of plaintiff's responses, this Court ordered plaintiff to supplement those responses by May 24, 2006, and continued plaintiff's deposition to a date following that supplementation. Doc. No. 33.

Plaintiff's deposition was re-noticed for Friday, June 23, 2006, at 9 a.m., i.e., a date and time to which both parties had agreed. Doc. No. 36. Less than one hour prior to the scheduled start of the deposition, however, plaintiff advised counsel for defendant by telephone that she would not appear at the deposition because she was needed at her church.*fn1 Because defendant's representatives had already arrived from out of town to attend the deposition, defendant filed a motion for sanctions. Affidavit of William H. Prophater, Jr.*fn2 ¶ 6 attached to Defendant's Motion for Sanctions, Doc. No. 43.

Defendant also re-noticed plaintiff's deposition to be held in Columbus, Ohio, on July 12, 2006. Doc. No. 42. On the day of that scheduled deposition, plaintiff filed a written motion requesting a continuance of the deposition due to unspecified "medical reasons." Doc. No. 59. See also Doc. No. 74. Plaintiff also asked that her deposition be held by telephone because such a procedure "would be more convenient for Plaintiff while enabling Defendant to proceed with discovery." Doc. No. 68.

After another discovery conference, the Court itself scheduled plaintiff's deposition to take place in the courthouse:

Plaintiff's deposition has been scheduled on a number of occasions and is the subject of a number of motions. Doc. Nos. 43, 59, 68, 74. During the course of the August 3, 2006, conference, the Court directed that plaintiff's deposition will proceed on August 10, 2006, beginning at 10:00 a.m., at Room 235, United States Courthouse, 85 Marconi Boulevard, Columbus, Ohio. Plaintiff must personally appear for her deposition . . . .

Order at 1, Doc. No. 76. Although the Court denied defendant's motion for sanctions, the Court expressly warned plaintiff that another failure on her part to appear at the deposition would not be tolerated:

Plaintiff is ADVISED, however, that her failure to personally appear for and fully participate in the deposition scheduled for August 10, 2006, will result in the imposition of sanctions, including the possible dismissal of the action.

Id. at 2.

Plaintiff did appear at this deposition. Throughout her deposition,*fn3 plaintiff repeatedly testified that she was in possession of notes, calendars, journals and/or diaries in which she had recorded specific instances of misconduct by defendant or its employees and which gave rise to the claims asserted in this action and that, without those documents, she could make no substantive response to most areas of inquiry. See, e.g., Plaintiff's Deposition ("Pl. Dep.") at 127-130, 132, 143, 146-47, 149, 152, 155-56, 161, 164, 168. Plaintiff also indicated that she had purposely withheld the documents from defendant so that she would not "give [her] whole case" away before it could "all come out" in court. Pl. Dep. at 146.

The Court specifically explained to plaintiff that the purpose of pretrial discovery is to permit the parties to learn as much as possible about the case, with a view to resolving the case on its merits, and that withholding relevant information so that it can be used later to "ambush" the opposing party at trial would not be tolerated. Id. at 198-99. The Court also instructed plaintiff that even diaries, journals and the like must be produced to the opposing party if they contain information relevant to the case.*fn4 Id. at 199. Plaintiff's deposition was continued until after production of the notes, calendars, journals and/or diaries upon which she relied. Id. at 318.

The parties agreed that plaintiff's continued deposition would take place on September 19, 2006. See Exhibit 4 attached to Defendant's Motion to Compel, Doc. No. 92. However, when plaintiff failed to produce the requested notes, calendars, journals and/or diaries, defendant filed a motion to compel. Doc. No. 92. The Court granted this motion and ordered plaintiff to produce the requested documents within ten days. Opinion and Order, Doc. No. 112. The Court again advised plaintiff of the consequences of her continued disregard of the rules governing discovery and non-compliance with the orders of this Court:

Plaintiff is ADVISED that her failure to strictly comply with this Order will result in the imposition of sanctions, including the possibility of dismissal of this action.

Id. at 8.

On September 27, 2006, plaintiff filed Plaintiff's Memorandum in Response to Court Order, Doc. No. 116, in which she submitted her sworn affidavit attesting that she did not have in her possession the documents that she had been ordered to produce. Her affidavit also suggested that plaintiff intentionally divested herself of the documents:

Plaintiff then, informs the court that she has no diary, journal or other "personal items" related to this matter in her possession. Plaintiff advises the Court that because she does not have these items in her possession, she can not submit them to the Defendant or anyone else.

Further, Plaintiff advises the court that Defense Counsel is not the only party interested in Plaintiffs (sic) diary and intellectual property and, while Plaintiffs (sic) diary may now be in the possession of some other curious soul, it is absolutely not in Plaintiffs (sic) possession, therefore ...

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