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Frappied v. Affinity Gaming Black Hawk, LLC

United States District Court, D. Colorado

April 20, 2018

CHRISTINE FRAPPIED, CHRISTINE GALLEGOS, KATHLEEN GREENE, JOYCE HANSEN, KRISTINE JOHNSON, GEORGEAN LABUTE, JOHN ROBERTS, JENNIFER RYAN, ANNETTE TRUJILLO, and DEBBIE VIGIL, Plaintiffs,
v.
AFFINITY GAMING BLACK HAWK, LLC, Defendant.

          ORDER

          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court on Plaintiffs' Motion to Quash Subpoenas and for Protective Order (“Motion to Quash”) [#60, filed January 19, 2018], which was referred to this Magistrate Judge pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated July 12, 2017 [#11], and the memorandum dated January 22, 2018 [#63]. The court has reviewed the Parties' briefing and the applicable case law, and additionally entertained argument as to these issues during informal discovery dispute conferences. See, e.g., [#78]. Being fully apprised of the premises, the court hereby GRANTS IN PART and DENIES IN PART Plaintiffs' Motion to Quash.

         BACKGROUND

         Plaintiffs Kurt Arntzen, Christine Frappied, Christine Gallegos, Kathleen Greene, Joyce Hansen, Judy Huck, Kristine Johnson, Georgean Labute, John Roberts, Jennifer Ryan, Annette Trujillo, and Debbie Vigil initiated this action on May 28, 2017, alleging that Defendants Affinity Gaming, LLC and Affinity Gaming of Black Hawk, LLC engaged in various types of discrimination when they terminated Plaintiffs' employment at three casinos operated in Black Hawk, Colorado. [#1]. After the Scheduling Conference in this case, the Parties stipulated to the dismissal of Affinity Gaming, LLC, leaving Affinity Gaming of Black Hawk, LLC (“Defendant” or “Affinity Gaming”) as the sole defendant. See [#18]. A few weeks later, Plaintiff Kurt Arntzen filed a Notice of Voluntary Dismissal, [#25], and Plaintiffs filed an Amended Complaint, followed quickly by a (Corrected) Amended Complaint. [#27, #28]. Ten days later, Plaintiffs filed a (Second Corrected) Amended Complaint, [#31], prompting Defendant to file a “Notice of Non-Opposition to Plaintiffs' (Second Corrected) Amended Complaint, ” [#33], and Plaintiffs to then file a “Motion to Amend (Corrected) Amended Complaint, ” [#35]. In granting Plaintiffs' “Motion to Amended (Corrected) Amended Complaint, ” the court noted that the (Second Corrected) Amended Complaint was, in fact, the Third Amended Complaint, and, in hopes of providing clarity, ordered Plaintiffs to file the operative complaint as the Third Amended Complaint. See [#37]. Accordingly, Plaintiffs filed the operative pleading as a Third Amended Complaint on October 2, 2017. [#39].

         In the Third Amended Complaint, Plaintiffs Frappied, Gallegos, Greene, Hansen, Johnson, Labute, Roberts, Ryan, Trujillo, and Vigil[1] (collectively, “Plaintiffs”) allege they all worked at the Golden Mardi Gras Casino (“the Casino”) for Defendant's predecessor, Golden Mardi Gras, Inc. [#39 at ¶ 19]. In or about March 2012, Defendant purchased the Casino and took over the day-to-day operations. [Id. at ¶ 22]. Defendant required all employees, including Plaintiffs, to reapply for their jobs, and each was rehired in or about November 2012. [Id.].

         In January 2013, however, each of the Plaintiffs was laid off. [Id. at ¶ 23]. Plaintiffs claim that they were laid off as a direct and proximate result of age and/or gender discrimination. [#39 at ¶¶ 34-35]. Specifically, Plaintiffs allege that Defendant's use of facially neutral selection criteria disparately impacted older female workers in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and/or the Colorado Age Discrimination Act (“CADA”). [Id. at ¶ 36]. Plaintiffs further contend that younger workers were hired to fill open positions in January 2013. [Id. at ¶¶ 40-41]. In addition, Plaintiff Trujillo alleges that she was selected for layoff due to her exercise of her rights under the Family Medical Leave Act (“FMLA”). [Id. at ¶ 43]. Accordingly:

(1) all Plaintiffs except Plaintiff Ryan assert a count of discriminatory discharge based on age in violation of the ADEA and CADA (“Count I”);
(2) Plaintiffs Frappied, Gallego, Green, Hansen, Johnson, LaBute, Ryan, Trujillo, and Vigil assert a count of gender discrimination in violation of Title VII (“Count II”);
(3) all Plaintiffs except Plaintiff Ryan assert a count of disparate impact in violation of the ADEA and CADA (“Count III”);
(4) Plaintiffs Frappied, Gallego, Green, Hansen, Johnson, LaBute, Ryan, Trujillo, and Vigil assert a count of disparate impact in violation of Title VII and CADA based on Defendant's treatment of “older female workers” (“Count IV”);
(5) Plaintiff Trujillo asserts a count of retaliation in violation of the FMLA (“Count V”); and
(6) Plaintiff Trujillo asserts a count of interference in violation of the FMLA (“Count VI”). [#39].

         Six months into discovery, on January 19, 2018, Defendant served subpoenas on various non-parties who had employed Plaintiffs, both pre-and post-discharge. See [#60]. Each of the subpoenas sought:

All employment records in your possession, custody or control including but not limited to any and all job descriptions, personnel files, severance agreements, payroll and compensation reports, earnings and tax statements, correspondence/applications, evaluations, performance reviews, grievances or other complaints asserted by or concerning the respective plaintiff, disciplinary records, commendations, training materials, leave or medical information, memos, attendance records, commission reports, sales records, charts or other objects pertaining to: [specific Plaintiff].

See, e.g., [#60-4 at 5]. Defendant also requested that each Plaintiff execute an employment records release to facilitate discovery in conjunction with Interrogatory No. 5. [Id. at 2]. The releases would permit employers to:

[R]elease any and all information in your care, custody and control concerning the employment of [specific Plaintiff] to [defense counsel] and to their representatives, and to permit them to read and to copy or obtain copies of any records concerning the employment and termination of employment of [specific Plaintiff], including, but not limited to, any and all job descriptions, personnel files, severance agreements, payroll and compensation reports, earnings and tax statements, correspondence, applications, evaluations, performance reviews, grievances or other complaints asserted by or concerning [specific Plaintiff], disciplinary records, commendations, training materials, leave or medical information, memos, attendance records, commission reports, sales records, charts or other object(s) pertaining to ...

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