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Davis v. Crescent Electric Supply Co.

United States District Court, D. South Dakota, Western Division

April 21, 2016

LISA A. DAVIS, Plaintiff,



Before the Court is Plaintiff Lisa Davis's (Davis) motion for sanctions against Defendants pursuant to Federal Rules of Civil Procedure 37, 26, and 11. For the following reasons, the motion is denied.


This case involves alleged wage discrimination and retaliation against an employee, Davis. Davis formerly worked for Defendant Crescent Electric Supply Company ("CESCO"). CESCO "is an electrical distributor with 120 locations and about 1550 employees throughout the United States." Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-2 at 1. She began work at CESCO on August 31, 2005 as a desk clerk. During Davis's time at CESCO, Defendant James M. Sullivan ("Sullivan") was her direct supervisor. For her position as a desk clerk, Davis received an hourly wage. In June 2010, Davis was promoted to a sales position-Quotation Specialist-as a replacement to Ken Herman ("Herman"). Prior to Davis accepting the position, Herman implied to Davis that she would receive commissions as part of being a Quotation Specialist. Sullivan, however, indicated only that Davis would receive a raise, but did not state that that raise would be in the form of commissions. Davis did receive a pay increase of $2.10, raising her pay rate of $12.40 per hour to $14.50 per hour.

As a Quotation Specialist, Davis received a list of jobs to bid on. She then had to request plans and produce counts of light fixtures to the customer. Prior to accepting the Quotation Specialist position, Davis had no experience in quotations. She was told, however, that she would not need product training. Training for the position itself was conducted between the incoming and outgoing Quotation Specialists.

On November 29, 2010, via email, Davis told Sullivan that she was informed by Herman that she would receive commissions as a part of the promotion. Davis wanted to know when she would receive the same. In a response email, Sullivan informed Davis that Herman did not have the authority to tell her that she would receive commissions, that commission pay for her position was not budgeted for the year, and that she received an hourly pay rate increase instead. Davis forwarded this two-email chain between her and Sullivan to a personal Yahoo email account. Davis claims she never sent a reply email to Sullivan.[1]

On January 1, 2011, Davis was moved to CESCO's warehouse in an effort to familiarize Davis with CESCO's products and help her successfully return to the Quotation Specialist position. Her pay rate was unaffected. On February 16, 2011, Davis was again reassigned, this time to Project Specialist. Her pay rate was again unaffected and her duties as Project Specialist were similar to the Quotation Specialist position, except that, as Project Specialist, Davis no longer bid on jobs.

In April 2011, Davis complained to CESCO of wage discrimination. Julie Skinner ("Skinner" or "Steinstra"), CESCO's HR Generalist, investigated Davis's complaint. As a result of the investigation, Skinner concluded that Davis's Quotation Specialist successor, Kody Mendel ("Mendel"), while receiving commissions, was making approximately $2, 000 less than Davis. The investigation further concluded that Davis was moved out of the Quotation Specialist position as a result of her performance. Skinner informed Davis of her conclusions in a letter dated April 27, 2011, Doc. 69-10.

Between March and May 2011, Davis encountered behaviors of Mendel that she considered to be sexual harassment directed toward her. Interpreting these behaviors as retaliation for her discrimination complaint, Davis filed a complaint with CESCO HR again. Similar to the April 27 letter from Skinner related to the discrimination claim, Skinner sent Davis a letter on May 26, 2011 informing Davis of Skinner's conclusions related to the sexual harassment/retaliation claim. In the letter, Skinner stated that she believed Mendel should receive disciplinary action for the behavior detailed by Davis. What action was taken by CESCO is unclear from the current record.

On June 16, 2011, Davis resigned from CESCO. Shortly thereafter, she filed a claim of discrimination against CESCO with the Equal Employment Opportunity Commission (EEOC). On August 1, 2011, Skinner sent a response letter to the EEOC. Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-2. To this letter was attached the two-email chain ("Exhibit 1A")[2]between Davis and Skinner from November 29, 2010 related to commissions. Doc. 97-2 at 3. See, supra, note 1 and accompanying text. Shortly thereafter, on August 23, 2011, Skinner accessed CESCO's email archives. Affidavit of Julie Skinner, Doc. 94, at 1. From the archives, Skinner retrieved the email exchange from Davis to Sullivan dated November 29, 2010, Id., a version of which was attached to the August 1, 2011 response to the EEOC. This archive-retrieved email chain ("Exhibit 2")[3], Doc. 90-5, however, contained a third email, a reply email from Davis to Sullivan. Responding to Sullivan's explanation to Davis that she received an hourly pay rate increase instead of commissions, the third email read, "Ok. I was just wondering. I can live with that. Thank you." Doc. 90-5. This three-email chain was sent to the EEOC on August 29, 2011 by Skinner. Second Supplemental Affidavit of Lisa A. Davis, Doc. 97-3, at 3.[4]

Davis filed her complaint in federal court on February 8, 2012. On June 8, 2015, Davis's original attorney-of-record withdrew from the case and Davis's current attorney-of-record, Mario Gonzalez, began handling Davis's case. On June 29, 2015, Davis filed the instant motion for sanctions against Defendants. In the motion, Davis claims that Exhibit 2, namely the third email in the chain, was fabricated by Defendants. Accordingly, Davis asks the Court to sanction Defendants by (1) striking Defendants' responsive pleadings and entering default judgment in favor of Davis, (2) holding Defendants in contempt of court, (3) striking Defendants' motion for summary judgment, and (4) awarding Davis costs and attorney's fees.


In the Eighth Circuit, district court impositions of sanctions are governed by the abuse of discretion standard. Perkins v. General Motors Corp., 965 F.2d 597, 602 (8th Cir. 1992) (upholding district court's imposition of sanctions under Federal Rules of Civil Procedure 11 and 26); Gallagher v. Magner, 619 F.3d 823, 844 (8th Cir. 2010) ("We review an order denying discovery sanctions for an abuse of discretion.") (citation omitted). "[T]he district courts [are given] a large amount of discretion in regulating and sanctioning misconduct which occurs in proceedings before it." Good Stewardship of Christian Center v. Empire Bank, 341 F.3d 794, 797 (8th Cir. 2003) (citing Hunt v. City of Minneapolis, Minn., 203 F.3d 524, 527 (8th Cir. 2000)). See Bunting v. Sea Ray, Inc., 99 F.3d 887, 890 (8th Cir. 1996) (holding that "[t]he conduct of discovery is committed to the trial court's sound discretion." The trial court did not "condone" obstructionist tactics in refusing to grant sanctions). Specific to when deciding whether to dismiss a case as a sanction for discovery abuses, "the district court must balance its 'need to advance its burdened docket against the consequence of irrevocably extinguishing [a] litigant's claim.'" Empire Bank, 341 F.3d at 797 (citation omitted). While a district court is advised to first consider lesser sanctions, Keefer v. Provident Life and Ace. Ins. Co., 238 F.3d 937, 941 (8th Cir. 2000), "[t]he futility of lesser sanctions is a further consideration in ...

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