CHARLESTON – The defendants in a lawsuit claiming a United Parcel Service employee who says she has been a repeat victim of discrimination are seeking a protective order to prevent depositions from taking place.
In April, RaeLynn Phillips filed a complaint in Kanawha Circuit Court against UPS and William Slimick Jr. In the complaint, Phillips claims she repeatedly was discriminated against based on gender, disability and pregnancy. She also says she was unfairly bypassed for a promotion when the job was given to former West Virginia University and NFL fullback Owen “Runaway Beer Truck” Schmitt.
In a recently filed motion for protective order, UPS and Slimick ask Kanawha Circuit Judge Duke Bloom for the protective order related to several depositions Phillips’ attorneys seek to take. That includes a deposition of Schmitt.
Schmitt
“Plaintiff desires to take several depositions seeking extensive information based on allegations that are untimely (outside of the West Virginia Human Rights Act’s two-year statute of limitations); and information that is irrelevant to the claims and defenses in this case and not reasonably calculated to lead to the discovery of admissible evidence,” the motion states. “Such discovery is by definition unduly burdensome and expensive. …
“There is ‘good cause’ to ‘protect (defendants and UPS employees) from annoyance, embarrassment, oppression or undue burden or expense,’ and thus defendants respectfully request the court to limit the scope of the requested depositions.”
Based on the fact Phillips says she first began seeking supervisory positions in 2010, the defendants claim her two-year statute of limitations has expired. And because of that two-year time limit, the defendants also maintain Phillips can’t recover any damages based on hiring decisions made before April 27, 2018, which was two years before she filed her complaint.
Conversely, UPS and Slimick argue that any of Phillips’ allegations of hostile work environment discrimination that took place before April 27, 2018, should be exempt from discovery as well.
“Such matters are irrelevant to the timely claims and defenses in this case, and are not reasonably calculated to lead to the discovery of admissible evidence; thus, defendants request that the scope of discovery be limited in this manner,” the motion states.
The defendants also claim Schmitt’s testimony is irrelevant to Phillips’ claims and would not lead to the discovery of admissible evidence.
“Instead, what is relevant is what the decision-makers knew and considered in deciding to promote Mr. Schmitt into the full-time On-Road Supervisor position in 2019,” the motion states.
In their response, Phillips’ attorneys say the defendants’ motion “baseless and should be swiftly rejected.” They also say the defendants have provided no evidence to show the depositions would constitute harassment.
“At this stage, the discovery sought by plaintiff is clearly relevant and therefore, discoverable,” their answer states. “Plaintiff has a right to engage in discovery in support of her claims, and defendants’ motion is an attempt to thwart plaintiff’s right to seek relevant information and to talk to fact witnesses. …
“Plaintiff has alleged that she has been subjected to disparate treatment throughout her employment in regard to promotions and that such discriminatory conduct constitutes a continuing violation.”
The plaintiff’s legal team also says deposing Schmitt should be allowed.
“Schmitt is a direct comparator as a similarly situated male employee who was treated differently than plaintiff,” they argue. “She (Phillips) also believes Robert Lilly, the division manager, and Mr. Schmitt have close, personal ties and that Mr. Schmitt was given preferential treatment.
“Plaintiff has a right to ask Mr. Schmitt questions about how he came to be hired at UPS, what his relationships are with other employees, his qualifications for the position, what he was told about the position, his job duties, his communications with other fact witnesses, etc.
“Defendants have proffered absolutely no evidence to demonstrate good cause to prohibit this fact witness deposition, offering only broad assertions that the deposition is somehow ‘harassing.’
“The truth is that UPS is trying to prevent plaintiff from uncovering relevant information about the relationship between Mr. Lilly and Mr. Schmitt and how Mr. Schmitt came to be hired as a full-time supervisor after only a few months of employment.”
According to her original complaint, Phillips began working for UPS in 2006. At the time of her filing in April, she was a part-time Package Dispatch Supervisor. She says she has performed her job duties in a satisfactory manner, and she has repeatedly worked to be considered for positions that provide higher pay and/or a promotion, including one that was given to Schmitt.
“When he (Schmitt) was playing in the NFL a decade ago, my client already had been working at UPS for years and was working on her bachelor’s degree,” John Einreinhofer, one of Phillips’ attorneys, said when the complaint originally was filed. “Within the last two years, he still was running Schmitt’s Saloon in Morgantown. Then, he comes in and gets this supervisor job over my client.”
Phillips first applied for a management position in 2007, and she passed the required management qualification tests. A supervisor told her she met the qualifications for a full-time management position, but she also was told she needed to obtain a bachelor’s degree to receive a promotion.
Phillips says she earned the degree in 2017 and has continually sought a full-time position and full-time supervisor position since then. She says lesser qualified males were given promotions instead of her.
In addition, she says she was discriminated against because of her pregnancy in 2014. She says her supervisor then tried to get her fired, specifically indicating “he wanted to get rid of her.”
Last year, Phillips filled out an application for an On Road Supervisor position even though it wasn’t advertised in the internal system. She says she didn’t hear from anyone at UPS about the position or have an interview scheduled.
“Plaintiff learned that defendants hired a lesser-experienced and lesser-qualified male, Owen Schmitt, for the position,” the complaint states. “During the time plaintiff was at UPS seeking promotions, Owen Schmitt was running a failing bar/restaurant, Schmitt’s Saloon, in Morgantown. …
“Mr. Schmitt’s jobs at the restaurant and bar included ‘running the business’ and ‘cooking, cleaning and bartending,’” according to a story in The (Morgantown) Dominion Post. “There was no indication Mr. Schmitt had any experience with UPS or its typical job duties during the time he worked at the saloon/restaurant.”
Schmitt, whose bar closed in June 2018, “did not possess credentials or experience equal to or superior to that of the plaintiff,” according to the complaint. Schmitt is not listed as a defendant in the lawsuit.
Phillips says she was told by Human Resources she did not have the driving qualification for the job. The complaint says the defendants have a pattern of willfully violating West Virginia Human Resource Act laws regarding gender discrimination.
“However, UPS routinely sends people to driving school, even after they are hired for positions, and the required driving court is only one week long,” the complaint states.
According to the complaint, Slimick’s title is Talent Acquisition/Human Resources Manager. He is based in the UPS offices located in South Charleston.
Phillips says she has suffered lost wages and benefits, out-of-pocket losses, emotional and mental distress, humiliation, anxiety, embarrassment, depression, aggravation, annoyance and inconvenience.
She seeks compensatory damages as well as punitive damages because the actions of the defendants were willful, wanton and malicious and were carried out with reckless disregard for Phillips’ legal rights.
She also seeks a permanent injunction ordering the defendants to establish an ongoing sex discrimination training program.
Phillips is represented by Einreinhofer of the Law Offices of John Einreinhofer in Charleston as well as Kristina Thomas Whiteaker of The Grubb Law Group in Charleston. The defendants are being represented by Grace Hurney and Mark Dellinger of Jackson Kelly in Charleston as well as Kathryn Hackett King of BurnsBarton PLC in Phoenix, Arizona.
During his three years at WVU, Schmitt developed a reputation as an aggressive blocker and rusher. He rushed for 1,003 yards and 13 touchdowns from 2005 to 2007. He also had 32 receptions for 288 yards and two TDs.
He was selected in the fifth round of the 2008 NFL Draft by the Seattle Seahawks. In 2010, he was signed by the Philadelphia Eagles. And in 2012, he signed with the Oakland Raiders. During his five-year pro career, Schmitt rushed 11 times for 28 yards. He also had 34 receptions for 218 yards and two touchdowns.
Kanawha Circuit Court case number 20-C-334