ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL (ECF Nos. 53, 59)
Plaintiff Benjamin C. Oyarzo initiated this action in the Fresno Division of the Eastern District on March 18, 2011, alleging violations of the Fair Labor Standards Act and the First and Fourteenth Amendments, and state law claims. Plaintiff Nicholas Hart filed a related case, No. 2:11-cv-00812-FCD-EFB, in the Sacramento Division of the Eastern District on March 24, 2011. On September 2, 2011, pursuant to a stipulation of the parties, the two actions were consolidated. This action is currently proceeding on the second amended complaint, filed September 19, 2011, against Defendants Tuolumne Fire District ("TFD"), Joseph Turner, Kenneth Hockett, Darlene Hutchins, and Toney Powers alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 12940, et seq., the First and Fourteenth Amendments, and state law claims.*fn1
On March 15, 2013, Plaintiffs filed a motion to compel responses to discovery requests. On April 10, 2013, the parties filed a joint statement re Plaintiffs' motion to compel Defendants' responses to discovery requests. The Court heard oral arguments on Plaintiffs' motion to compel on April 17, 2012. Counsel Shannon Siebert appeared for Plaintiffs Oyarzo and Hart and counsel J. Anthony Abbott appeared telephonically for Defendants. The parties were granted an opportunity to file supplemental briefing. On April 18, 2013, Plaintiffs filed a supplemental briefing. Defendants filed a response on April 19, 2013.
Having considered the moving papers, the declarations and exhibits attached thereto, arguments presented at the April 17, 2012, hearing, as well as the Court's file, the Court issues the following order.
Plaintiff Oyarzo was hired as a permanent full-time employee of Defendant TFD in June 2006. (Sec. Am. Compl. ¶ 15.) Plaintiff Oyarzo alleges that from March 1, 2009 through June 8, 2010, he regularly worked hours for which he was not compensated. (Id. at ¶ 19.)
Plaintiff Hart was hired as a permanent full-time employee of Defendant TFD in February 2009. (Id. at ¶ 16.) Plaintiff Hart alleges that he regularly worked hours for which he was not compensated from June 1, 2009 though June 8, 2010. (Id. at ¶ 21.) Plaintiffs Oyarzo and Hart state they regularly discussed the uncompensated duties they performed and the shifts worked with the members of TFD's Board of Directors. (Id. at ¶¶ 20, 22.)
Prior to the spring of 2010, Plaintiff Oyarzo was regularly commended for the manner in which he performed his duties by Defendants Turner and TFD's Board of Directors, and this was reflected in his annual performance reviews. (Id. at ¶ 23.) Plaintiff Oyarzo was promoted to Administrative Captain in November 2007, and Fire Chief in April 2008. (Id. at ¶ 24.) Plaintiff Oyarzo was scheduled to work one 48-hour shift every 6 days and was compensated on an hourly basis. (Id. at ¶ 25.)
In 2009, partly due to personal concerns for their safety and property, Defendants Oyarzo and Hart spent time working to implement a plan to annex approximately 68,000 acres of Tuolumne County land into Defendant TFD's jurisdiction. (Id. at ¶¶ 29, 30.) In February 2010, county officials expressed their "anger" at the annexation efforts and insisted that the activity be placed on hold. Plaintiff Oyarzo agreed to place the efforts on hold until June 2010. (Id. at ¶ 31.) After discovering that county officials were angry over the annexation efforts, Defendant Turner, who was aware of Plaintiff Hart's involvement, informed other TFD Board Members that Plaintiff Oyarzo was responsible for the annexation effort and that he would hold Plaintiff Oyarzo responsible for angering the county officials. (Id. at ¶ 32.)
In April 2010, Plaintiff Oyarzo disciplined all member of Defendant TFD's firefighting staff for safety violations and reported the violations to the Board of Directors in May 2010. (Id. at ¶ 33.) Plaintiff Oyarzo alleges that Defendants Turner, Hutchins, and Powers conspired to convince the firefighters who had been disciplined to fabricate allegations against Plaintiff Oyarzo. Based on these allegations, Defendants Turner and Hutchins began an investigation of Plaintiff Oyarzo. (Id. at ¶ 34.) Defendant Turner prohibited all employees of Defendant TFD from speaking to or associating with Plaintiff Oyarzo. (Id. at ¶ 35.)
In June 2010, Plaintiff Hart became aware of activities of Defendants Turner, Hutchins, and Powers. Plaintiff Hart told Defendant Powers that he refused to retaliate against Plaintiff Oyarzo; and Defendant Powers allegedly stated that he would retaliate against Plaintiff Hart if he assisted, supported, or associated with Plaintiff Oyarzo. (Id. at ¶ 36.) Plaintiff Hart claims that he was then treated with hostility and harassment by TDF's Board of Directors and staff. Plaintiff Hart was subjected to increased scrutiny by Defendant Powers and his responsibilities were transferred to interns with little or no experience. (Id. at ¶ 37.)
On June 8, 2010, Plaintiff Oyarzo was called into a closed session of the Board of Directors meeting and was informed of the investigation against him. Plaintiff Oyarzo was questioned during the session and was placed on leave until June 28, 2010. (Id. at ¶ 38.) Plaintiff Oyarzo was called to a second closed session meeting on June 28, 2010, and was denied his request for representation during the meeting. (Id. at ¶ 39.) At the conclusion of the meeting, Plaintiff was placed on administrative leave by a majority vote of the Board; and the hearing was continued until July 13, 2010. (Id. at ¶ 40.)
In July 2010, Plaintiff Oyarzo filed an action against Defendant TFD claiming that three of the Board members did not reside inside the District. Due to the filing of this action, three Board members resigned, including Defendant Turner. (Id. at ¶ 42.) The new Board ordered an investigation into the allegations against Plaintiff Oyarzo and he was returned to work on September 6, 2010. (Id. at ¶ 43.) Defendant Hutchins was the only Board member to vote against reinstating Plaintiff Oyarzo. She later resigned from the Board citing hostility of the other Board members as the reason for her resignation. (Id. at ¶ 44.)
Plaintiff Oyarzo contends that, after returning to work, he was treated with hostility by Defendant Powers and the rest of Defendant TFD's staff. (Id. at ¶ 45.) Plaintiff Hart contends that he was also treated with hostility and his colleagues refused to speak to him from September through December 2010, and falsely accused him of failing to perform his duties. Plaintiffs Oyarzo and Hart allege that documents were improperly altered, tampered with, or added to their personnel files. (Id. at ¶ 46.) In September 2010, Plaintiff Hart informed Defendant Hockett of the treatment he was being subjected to; and Defendant Hockett refused to intervene and began treating Plaintiff Hart with hostility. (Id. at ¶¶ 47-48.)
During TFD Board meetings in September, October, and November 2010 proposals were accepted for ways to trim TFD's budget without reducing staff. Defendant Hockett dismissed the suggestions stating the only acceptable method of reducing the budget was staff reductions. (Id. at ¶ 49.) On September 27, 2010, Plaintiff Oyarzo was placed on medical leave for two months. Due to being alone on his shift, Plaintiff Hart expressed safety concerns to Defendant Hockett who refused to fill the vacancy left by the absence of Plaintiff Oyarzo. (Id. at ¶ 50.) On October 12, 2010, a Board member's son filled in as volunteer firefighter so Plaintiff Hart would not have to work alone. (Id. at ¶ 51.) The volunteer was prohibited from working from October 13 through 18 due to not having obtained a physical examination. (Id. at ¶ 52.)
Defendant Hockett began an investigation into Plaintiff Hart. On October 20, 2010, Plaintiff Hart had a phone conversation regarding the investigation with Defendant Hockett that lasted approximately one hour. (Id. at ¶ 53.) On November 1, 2010, Plaintiff Hart was given a letter accusing him of insubordination that was placed in his personnel file by Defendant Hockett. (Id. at ¶ 54.)
After firefighters failed to be present at a former firefighters funeral at the request of the family, Defendant Hockett instituted an investigation into Plaintiff Hart. (Id. at ¶¶ 55, 57.) Although the request to have firefighters present was taken by an intern and not conveyed to Plaintiff Hart, Defendant Hockett placed a written warning into Plaintiff Hart's personnel file. (Id. at ¶ 55, 58.)
Defendant Machado, a friend of Defendant Powers, was elected to the Board and he publically urged the Board to terminate Plaintiff Oyarzo. (Id. at ¶ 60.) At a board meeting on December 13, 2010, Defendant Machado made a motion to lay off the least senior firefighter and reclassify the remaining firefighting staff as Engineers being paid at $12.00 per hour. The motion passed on a vote of four to one. (Id. at ¶ 61.) The result of the vote was that Plaintiff Hart was terminated on January 1, 2011, and Plaintiff Oyarzo was demoted one rank, from Captain to Engineer, resulting in a 43 percent pay decrease. Plaintiff Oyarzo refused the demotion and was terminated effective January 1, 2011. (Id. at 62.) Approximately two months after Plaintiffs Oyarzo and Hart were terminated, Defendant Powers was promoted to Plaintiff Oyarzo's prior position, and two individuals were hired to the position previously held by Defendant Hart. (Id. at 63.)
Plaintiffs allege 1) failure to compensate them for hours worked in violation of the Fair Labor Standards Act; 2) deterrence of right to free speech and retaliation in violation of the First Amendment; 3) violation of their right to due process of law under the Fourteenth Amendment; 4) retaliation in violation of California Labor Code sections 6310 and 1102.5; 5) violation of the California Firefighter's Procedural Bill of Rights; and 6) age and marital status discrimination against Plaintiff Oyarzo, retaliation, and harassment under the California Fair Employment and Housing Act.
MOTION TO COMPEL LEGAL STANDARD
The scope of discovery is set forth in the Federal Rules of Civil Procedure, which provides that:
Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense--including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. . . 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). Relevant evidence is evidence that "has any tendency to make a fact more or less probable than it would be without the evidence. . . ." Fed.R.Evid. 401. Relevance to the subject matter of the litigation has been broadly construed "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
If a party fails to make disclosures or cooperate in discovery, the discovering party may move for an order compelling discovery. Fed.R.Civ.P. 37(a). The moving party has the burden of informing the court of the reasons that any objections are not justified and why the information sought though discovery is relevant to the action. Holley v. Swarthout, No. 2:10-cv-0615 MCE EFB P, 2013 WL 1284316, at *2 (E.D.Cal. March 28, 2013).
PLAINTIFFS' MOTION TO COMPEL
A. Requests for Admissions
A party may request that the other party admit the truth of any matter relating to facts and "the genuineness of any described document." Fed.R.Civ.P. 36(a)(1). If a party does not admit a matter, the response to a request for admission "must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it . . . and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest." Fed.R.Civ.P 36(a)(4). The purpose of Rule 36(a) is to narrow the range of issues for trial. Asea, Inc. V. Southern Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981). "[A] district court may, under proper circumstances and in its discretion, order admitted matters which an answering party has failed to admit or deny, where the information known or readily obtainable after reasonable inquiry was sufficient to enable the answering party to admit or deny." Asea, Inc., 669 F.2d at 1245.
1. Plaintiff Hart's Request for Admissions Propounded to Defendant Hockett
a. Request for Admission No. 41
Plaintiff Hart's Request for Admission No. 41 states: Admit that YOU knew, at the time the work was performed, that Benjamin Oyarzo was performing job-related activities that benefited [sic] Tuolumne Fire District for which he was not paid between September 26, 2010 and December 8, 2010. Defendant Hockett's Response to Request for Admission No. 41 states: Objection, not reasonably calculated to lead to the discovery of admissible evidence or dispose of an issue presented by the pleadings, because no ...