Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 1 of 28 PageID 1392 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SUZANNE B. ARTERS, § § Plaintiff, § § Civil Action No. 3:07-CV-0957-D VS. § § UNIVISION RADIO BROADCASTING § TX, L.P., et al., § § Defendants. § MEMORANDUM OPINION AND ORDER In this employment discrimination case, plaintiff appeals the magistrate judge’s order denying her motion to compel discovery. She also seeks under Fed. R. Civ. P. 56(f) a continuance of her obligation to respond to defendants’ motion for summary judgment. For the reasons that follow, the court affirms the order of the magistrate judge and grants plaintiff’s Rule 56(f) motion to the extent of directing that she file her summary judgment response within 21 days of the date this memorandum opinion and order is filed. I Plaintiff Suzanne B. Arters (“Arters”) sues defendants Univision Radio Broadcasting TX L.P. and Univision Communications, Inc. (collectively, “Univision”), alleging age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and the Texas Commission on Human Rights Act, Tex. Labor Code Ann. §§ 21.001-21.556 (Vernon Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 2 of 28 PageID 1393 2006),1 and pendent state-law claims for breach of contract, quantum meruit, and unjust enrichment for work performed and commissions earned but not paid, defamation, and tortious interference with contracts and/or business opportunities. Arters worked as an Account Executive (“AE”) for Univision from 2002 until her termination in 2006. Univision owns five radio stations in the San Antonio area: (1) KCOR-AM, (2) KCOR-FM, (3) KROM, (4) KXTN, and (5) KBBT “The Beat.” Throughout her employment, Arters’ primary responsibility was to sell radio air time to advertisers on certain Univision stations. When Arters was first hired, the advertising sales employees were divided into three teams. Team One sold ads on KXTN and was managed by Rory Charitan (“Charitan”). Team Two, to which Arters was assigned, sold ads for stations KROM, KCOR-FM and KCOR-AM and was managed by Ernie Quinones (“Quinones”). Team Three sold advertising for KBBT (hereafter sometimes referred to as “The Beat”) and was managed by Barbara Carreon (“Carreon”). Until sometime in 2005, Arters sold advertising only for KROM and KCOR- AM. In 2005, after the sales quotas for the 2006 budget had been set, Univision made the following two changes: it combined Teams 1As the court noted in King v. Enterprise Leasing Co. of DFW, 2007 WL 2005541 (N.D. Tex. July 11, 2007) (Fitzwater, J.): “‘Chapter 21 was entitled the Texas Commission on Human Rights Act until the abolishment of the Commission on Human Rights. In 2004, the ‘powers and duties’ of the Commission on Human Rights were transferred to the Texas Workforce Commission Civil Rights Division.’” Id. at *1 n.1 (quoting Tex. Dep’t of Criminal Justice v. Guard, 2007 WL 1119572, at *2 n.3 (Tex. App. 2007, no pet. h.) (not designated for publication)). - 2 - Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 3 of 28 PageID 1394 One and Two, and it assigned advertising clients to a single AE so that each advertising client would work with a single AE in placing its advertisements on KXTN, KROM, KCOR-FM, or KCOR-AM (the four stations formerly assigned to Team One or Team Two). Univision has referred to this four-station grouping as the “Spanish Cluster,” but Arters disputes the representation that all of them used Spanish language formats. See P. Br. 8-92 (“KCOR-FM switched formats from Spanish-only music to bilingual, and then it changed formats again to Spanish only . English language commercials are often broadcast even on Univision’s Spanish stations, and on KXTN the disk jockeys speak mostly English or a blend of English and Spanish.”). It is undisputed, however, that The Beat was an English-language radio station with a hip-hop musical format. After these changes were made, the AEs who comprised Teams One and Two were requested to redo their 2006 sales projections in light of the changes. None of the changes, however, affected the AEs assigned to sell advertising for KBBT. Arters’ compensation was based solely on commissions, which were calculated to be a certain percentage of the sales revenues she generated, provided that the customer paid the invoice within a certain amount of time. Arters contends that the stated reason 2As used in this memorandum opinion and order, “P. Br.” means Arters’ motion for reconsideration, filed January 26, 2009. “P. Supp. Br.” means her supplement to her motion for reconsideration filed February 17, 2009. - 3 - Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 4 of 28 PageID 1395 for her termination (poor sales performance in 2006) is a pretext and that the real reason for her termination was her age (48 at the time of termination). Arters moved for an order compelling Univision to respond fully and completely to various written discovery requests. The magistrate judge conducted a hearing and denied the motion with respect to information sought from AEs employed to obtain advertising for The Beat, concluding that such AEs were not comparably situated to Arters. Arters appeals the order as it relates to the following requested information: 1. The following information for each [AE] who was assigned to KBBT “The Beat”: His or her complete personnel file, including at a minimum documents reflecting original date of hire, date of birth, Performance Improvement Plans (“PIPs”), written warnings, monthly budget underperformance memos, and all disciplinary actions of any kind. 2. For each of the years 2004, 2005 and 2006, for all AE’s assigned to any of the five San Antonio radio Stations (including The Beat), each AE’s: (i) actual sales commissions earned and/or paid, and all related supporting calculations, (ii) promotions and demotions; (iii) personnel documents reflecting the termination of employment if applicable; and (iv) severance or separation agreement if applicable. 3. For each of the years 2004, 2005 and 2006, for all AE’s assigned to any of the five San Antonio radio Stations (including The Beat), each AE’s: (i) Total sales quotas, (ii) Actual Total sales amounts booked and collected, (iii) New Business quotas, and (iv) Actual New Business amounts sold and collected. - 4 - Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 5 of 28 PageID 1396 4. For each of the years 2004, 2005 and 2006, for all AE’s assigned to any of the five San Antonio radio Stations (including The Beat), a listing of each AE’s assigned commercial accounts, by calendar year, and any memos to or from management or other AE’s as it relates to the setting of budget numbers, quotas and/or assigned accounts. P. Br. 2 (emphasis and footnotes omitted). Arters maintains that she is entitled to this information from The Beat AEs3 because the scope of discovery in discrimination and retaliation cases is necessarily broad, and because the magistrate judge based his determination that The Beat AEs are not comparably situated on erroneous findings of fact. She moves for reconsideration of (“appeals”) the order. II The standard of review for a decision of a magistrate judge in a nondispositive matter is governed by Rule 72(a), which provides that “[t]he district judge in the case must . modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id. “‘The “clearly erroneous” standard applies to the factual components of the magistrate judge’s decision.’” Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204, 208 (N.D. 3To the extent Arters also argues that she is entitled to receive, but has not yet received, the above information from the other AEs not assigned to The Beat, the court upholds the magistrate judge’s decision because Arters has not adequately briefed those arguments, and it is not evident from the record that the magistrate judge’s rulings on those requests were legally erroneous, based on clearly erroneous factual findings, or an abuse of discretion. - 5 - Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 6 of 28 PageID 1397 Tex. 1996) (Fitzwater, J.) (quoting Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994) (Fitzwater, J.)). “‘The district court may not disturb a factual finding of the magistrate judge unless, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed.’” Id. (quoting Smith, 154 F.R.D. at 665) (internal quotation marks omitted). “‘If a magistrate judge’s account of the evidence is plausible in light of the record viewed in its entirety, a district judge may not reverse it.’” Id. (quoting Smith, 154 F.R.D. at 665) (internal quotation marks omitted). The legal conclusions of the magistrate judge are reviewable de novo, and the district judge “reverses if the magistrate judge erred in some respect in [his] legal conclusions.” Id. “[T]he abuse of discretion standard governs review of ‘that vast area of choice that remains to the [magistrate judge] who has properly applied the law to fact findings that are not clearly erroneous.’” Id. (quoting Smith, 154 F.R.D. at 665) (ellipsis omitted; alteration in original). III A Under Rule 26(b)(1), [p]arties may obtain discovery regarding any nonprivileged 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 - 6 - Case 3:07-cv-00957-D Document 47 Filed 05/12/09 Page 7 of 28 PageID 1398 location of persons who know of any discoverable matter.