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Chambers v. Hibu, Inc.

United States District Court, W.D. Kentucky, Louisville Division

December 12, 2017

HIBU, INC., Defendant.


          Colin Lindsay, Magistrate Judge

         Before the Court is a Motion to Compel (DN 35) filed by plaintiff Jamie Chambers. Defendant Hibu, Inc. filed a response (DN 36), and plaintiff filed a reply (DN 37). Therefore, this matter is ripe for review.

         I. BACKGROUND

         Plaintiff was a sales representative for defendant for seven years, holding several positions in sales during that time. (DN 1-1 at 3.) Plaintiff claims that, while employed by defendant, she “informed her superiors . . . that her medical providers had advised that her symptoms indicated she had multiple sclerosis (“MS”).” (Id. at 3.) Plaintiff was terminated by defendant in June 2014. (Id.)

         Plaintiff brought claims under the Americans with Disabilities Act, Kentucky Civil Rights Act, and Kentucky Equal Opportunities Act. (Id. at 2.) Plaintiff alleges that defendant failed to make reasonable accommodations for her disability during her employment, and that she was terminated because of her disability. (Id. at 3-4.) Defendant, on the other hand, contends that plaintiff was terminated for a legitimate, non-discriminatory reason, specifically because of her sales performance as compared to other sales representatives in the region. (DN 36 at 2.)

         At issue in the Motion to Compel are the formulas used by defendant set objectives and rankings for its sales representatives compile a performance review report (“PRR”). PRRs are the means by which defendant tracks and ranks performance for its sales representatives, including plaintiff. (DN 36-1 at 1.) There appears to be no dispute that from 2011 to 2014 plaintiff's overall performance rating had generally declined as reflected in the year-end PRRs for 2011-2014. Plaintiff asserts that the decline tracks the same period in which she began experiencing symptoms of MS. Thus, plaintiff contends that defendants stated reason for terminating her - her performance at work - is pre-textual. Plaintiff therefore asserts that she is entitled to the formulas used to compile the PRRs at issue.

         Defendant asserts that the objectives, rankings, and methodology for calculating the rankings are set forth in the year-end PRRs provided. Defendant argues that, first and foremost, plaintiff has not made a discovery request for the production of the formulas used to set objectives and/or rankings; rather, plaintiff has only propounded interrogatories, which defendant has answered. Defendant also asserts that it has provided other discovery that adequately explains the sales objectives and rankings and the method by which they were applied to plaintiff.

         Second, defendant asserts that there is no reason to dispute the accuracy of the information set forth in the year-end PRRs. Defendant therefore argues that there is sufficient information to test its legitimate non-discriminatory reason for terminating plaintiff. Defendant asserts that it is undisputed that objectives for sales representatives are set by the Sales Planning Department, not by local sales managers, and that they are set on an across-the-board basis for all sales representatives with variances based only on title or geographic market. Defendant claims that the Sales Planning Department played no role in the decision to terminate plaintiff's employment.

         Third, defendant argues that the requested documents do not exist, and it should not be compelled to create new documents. Defendant avers that plaintiff can ascertain the information that she needs to determine if it applied its sales objectives in a discriminatory manner by reviewing the already-produced year-end PRRs and other record evidence.

         In her reply, plaintiff avers that defendant's position is inconsistent. On one hand, defendant claims that the formulas and criteria were applied consistently across the board, and, on the other hand, providing the formulas would be unduly burdensome because it would have to reconstruct the inconsistent mutations of the formulas that developed during the year. Plaintiff asserts that the formulas go to the heart of the matter, i.e., defendant's proffered non-discriminatory reason for terminating her. Plaintiff states that the record confirms inconsistent applications of the formulas. Plaintiff also argues that, contrary to defendant's assertions, the year-end PRRs (and the record evidence) do not provide all the information that she needs to test defendant's proffered non-discriminatory reason for her termination. Finally, plaintiff argues, among other things, that production would not be unduly burdensome, that the initial Excel spreadsheets used to determine sales objectives that have been located by defendant should be produced, and the scope of the discovery could be limited to the region in which plaintiff was employed.


         The Court will begin by attempting to simplify the description and significance of the PRRs and the objectives contained therein. The Court observes that the explanation proffered by defendant is not entirely clear or exhaustive. By saying this, the Court is not accusing defendant of hiding the ball; rather, this may simply be reflective of the complicated nature of the system by which objectives are determined and tracked. That being said, just because a system may be complicated does not mean that a plaintiff is not entitled to an understandable and thorough explanation.

         According to Lisa Mueller, vice president of the Sales Planning Department, a PRR shows each sales representative's sales objectives; the representative's performance against each of those objectives; and the ranking of that representative's performance in each objective against the other representatives in the same geographic region. (DN 36-1 at 2.) Rankings for each objective are converted into scores based on the weighting assigned to each objective; those scores are then added together for a cumulative score. (Id.)

         Mueller states that, depending on the objectives, they are set either company-wide or market wide for all sales representatives with the same title. (Id.) Mueller then addresses (1) sales objectives measured by number of product sales or number of new customers; (2) sales objectives that are measured by dollar amounts; and (3) “Total Sales” or “Total Revenue” objective. (Id. at 3.) With respect to (1) Mueller states that the number is set at the same number for all sales representatives with the same title across the country. (Id.) With respect to (2), Mueller states that the number is set using the same criteria for all sales representatives with the same title in the geographic market. (Id.) However, Mueller states the “assignment” amount - or the dollar amount spent by the sales representative's assigned customer base during the prior year - in the “Renewal and Increase” objective differs by title and by sales representative, with more senior representatives typically receiving larger assignments. (Id.) With ...

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