Davidson v. Evergreen Park Community High School District No. 231 Board of Education

Filing 78

MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 11/23/2016. Mailed notice. (dm, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRAD DAVIDSON,
Plaintiff,

No. 15 C 0039

v.
EVERGREEN PARK COMMUNITY
HIGH SCHOOL DISTRICT 231,

Magistrate Judge Mary M. Rowland

Defendant.
MEMORANDUM OPINION AND ORDER
Brad Davidson initiated this action against Evergreen Park Community High
School District 231, alleging that it denied him leave or use of leave as provided for
in the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2917. The parties have
consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28
U.S.C. § 636(c). The School District has filed a Motion to Bar Testimony or Other
Evidence of Plaintiff’s Ability to Return to Work and Damages. For the reasons set
forth below, the Motion is granted in that Plaintiff cannot present evidence that he
was able to return to work from November 25, 2014 to January 5, 2015.
I. BACKGROUND
In his Amended Complaint, Davidson alleges that the School District interfered
with and restrained his use of FMLA leave to care for his wife, Bonny Davidson.
First Davidson alleges that the School District improperly denied him FMLA leave
from August 19-22, 2014; he then asserts the School District prevented him from
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returning to work from November 25, 2014, through January 4, 2015. (Dkt. 23
(Compl.) ¶¶ 8, 10, 29, 31). Davidson also alleges that he was terminated after
returning to work at least in part because of his use of FMLA leave. (Id. at ¶ 37).
In responding to the School District’s interrogatories, Davidson asserted that he
was able and available to work from November 25, 2014, through January 4, 2015,
and that he worked during this period as a private tutor. (Dkt. 58, Ex. C at ¶ 6). But
Davidson objected to producing Bonny’s medical records and his tax returns. (Id.,
Ex. B at ¶¶ 8, 20). On August 21, 2015, the School District filed a motion to compel
responses to its document requests. (Dkt. 12). On September 17, 2015, the Court
granted the motion, in part, and ordered Davidson “to produce medical records
regarding his spouse’s medical condition that are relevant to his being eligible for
FMLA leave.” (Dkt. 18). Although Bonny was treated by eight separate physicians,
Davidson only produced medical records from a Dr. Joel Shoolin. (Dkt. 58 at ¶ 8).
During his January 13, 2016 deposition, Davidson testified to the following: (a)
Bonny was evaluated and treated by eight different doctors between August and
December 2014; (b) Bonny tracked her medical appointments on an electronic
calendar; (c) Davidson required FMLA leave to drive Bonny to and from her two-tofour-hour medical appointments as well as her two-hour physical therapy
appointments; (d) Bonny was unable to drive from at least August 2014 through the
summer of 2015; and (e) Bonny saw seven doctors from Thanksgiving through
Christmas 2014. (Dkt. 58, Ex. D at 98–107). When the School District’s attorney
questioned whether Davidson could have returned to work after Thanksgiving 2014

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in light of the assistance Bonny required to attend her medical appointments,
Davidson testified that all seven doctor’s appointments occurred before November
25. 1 (Id. at 103–04).
After the deposition, the School District requested that Davidson supplement his
production by providing all of Bonny’s medical records from August 2014 through
April 2015. (Dkt. 58 at ¶ 11 & Ex. E). On March 9, 2016, Plaintiff’s counsel informed
Defendant’s counsel that he instructed Davidson to gather Bonny’s medical records.
(Id. ¶ 14). On March 18, Plaintiff’s counsel reported to defense counsel that he had
some, but not all of Bonny’s medical records and would produce them shortly;
however, no records were produced. (Id. ¶¶ 16–19).
At the March 22, 2016 status, the parties reported having resolved their
remaining discovery disputes but requested entry of an Amended Protective Order
before exchanging documents, including medical records. (Dkt. 47). Two days later
the court entered the Amended Protective Order. (Dkt. 48). 2 Nevertheless, on April
27, 2016, the School District was forced to file a second motion to compel. (Dkt. 50).
At the hearing on the motion, Plaintiff’s counsel informed the Court that he was in
possession of the medical records from all of Bonny’s medical providers, with the
exception of Dr. Sekadia, her pain specialist. (Dkt. 58 at ¶ 21). 3 The Court ordered
Davidson to produce all medical records, except Dr. Sekadia’s, by the end of the day,
In 2014, Thanksgiving was on November 27.
The amendment defined School District Board Meeting minutes as confidential
documents; it had no impact on the production of medical records which were covered by
the original Protective Order entered on October 9, 2015. (Dkt. 24).
3 The Court has reviewed the audio recording from this hearing to confirm that Plaintiff’s
counsel indicated that he was in possession of all of Bonny’s other medical records.
1
2

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and ordered Davidson to produce Dr. Sekadia’s records, along with Davidson’s W2s
and 1099s from August 2014 through the present, by May 20, 2016. (Dkt. 54).
Davidson’s April 28 production was incomplete. First, instead of producing the
original calendar of Bonny’s appointments, Davidson produced a list of Bonny’s
medical appointments allegedly drafted by Bonny based on the calendar. (Dkt. 58 at
¶ 22 & Ex. K). Second, while the list indicates Bonny had at least 16 medical
appointments between November 25, 2014, and January 5, 2015, Davidson
produced medical records from only a quarter of those visits. (Id. ¶ 23 & Ex. K). On
May 20, 2016, Davidson produced his W2 statements from the School District but
failed to produce any tax forms relating to his employment as a tutor from August
2014 through the present. (Id. ¶ 25 & Ex. L).
II. DISCUSSION
A. Applicable Law
The Federal Rules grant the district court with discretionary authority to impose
appropriate sanctions for violations of discovery orders. Fed. R. Civ. P. 37(b)(2)(A);
see e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011)
(“[D]istrict courts have wide latitude in fashioning appropriate sanctions.”) (citation
omitted). The Supreme Court has explicitly stated that sanctions may be
appropriate where the noncomplying party acted either with willfulness, bad faith
or fault. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 640 (1976)
(per curiam). “‘Fault,’ . . . doesn’t speak to the noncomplying party’s disposition at
all, but rather only describes the reasonableness of the conduct—or lack thereof—
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which eventually culminated in the violation.” Marrocco v. Gen’l Motors Corp., 966
F.2d 220, 224 (7th Cir. 1992). “Fault,” however, is more than “a mere mistake or
slight error in judgment;” instead, it “suggests objectively unreasonable behavior.”
Long v. Steepro, 213 F.3d 983, 987 (7th Cir. 2000); see e360 Insight, 658 F.3d at
642–43 (observing that negligence is sufficient fault for imposing sanctions). The
possible sanctions for failure to comply with a discovery order are listed in Rule 37
and include “prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence.”
Fed. R. Civ. P. 37(b)(2)(A)(ii).
The district court also has the inherent authority to sanction a party. This
authority is based on the court’s power “to control the judicial process and
litigation” (Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 517 (D. Md.
2010) (citation omitted)) and to “manage and ensure the expeditious resolution of
cases.” Larson v. Bank One Corp., No. 00 C 2100, 2005 WL 4652509, at *8 (N.D. Ill.
Aug. 18, 2005). This power is necessary “to fashion an appropriate sanction for
conduct which abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32,
44–45 (1991). Thus, “[j]udges have inherent authority to impose sanctions for
misconduct by litigants, their lawyers, witnesses, and others who participate in a
lawsuit over which the judge is presiding.” S.E.C. v. First Choice Mgmt. Servs., Inc.,
678 F.3d 538, 543 (7th Cir. 2012). The underlying policy “is the need to preserve the
integrity of the judicial process in order to retain confidence that the process works

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to uncover the truth.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of
Am. Sec., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010) (citation omitted).
Whether under Rule 37 or the court’s inherent authority, the party seeking
sanctions must demonstrate that it was prejudiced by the discovery violation.
Marrocco, 966 F.2d at 225. In evaluating the proposed sanction, the district court
should determine if a lesser sanction would be adequate (see id.), considering “the
entire procedural history of the case.” Long, 213 F.3d at 986.
B. Plaintiff is barred from offering evidence that he could return to work
between November 25, 2014 and January 5, 2015.
The School District moves for sanctions for under Rule 37. (Dkt. 58). Davidson
responds that because he has “substantially complied with all discovery”, and the
School District was not prejudiced, so no sanctions are warranted. (Dkt. 71 at 3, 5).
In light of Davidson’s allegation that the School District interfered with his
FMLA rights by not permitting him between to return to work November 25, 2014
and January 5, 2015 and his testimony about Bonny’s medical appointments and
need for a driver, Bonny’s medical records for the period November 25, 2014
through January 5, 2015 are particularly relevant. On September 17, 2015, the
Court ordered Davidson to produce these medical records. Then on April 28, 2016,
Davidson assured the Court that he would be producing all medical records, with
the exception of Dr. Sekadia’s, by the end of the day. (Dkt. 54). But Davidson’s
production was grossly inadequate. According to a “summary” of Bonny’s original
calendar of medical appointments, she had 16 appointments during the crucial

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period of November 25, 2014, through January 4, 2015. (Dkt. 58, Ex. J). Davidson
produced medical records for only three of those appointments.
That lack of production, after an assurance from Plaintiff’s counsel that all the
records were in hand, is prejudicial to the School District when it is being accused of
interfering with Davidson’s FMLA rights. 4 Davidson alleges that the School District
interfered with his use of FMLA leave by declining to allow him to return to work
on November 25, 2014. (Compl. ¶ 10). During his deposition, Davidson testified that
from August 2014 through August 2015, Bonny’s poor health prevented her from
driving, and he was required to transport her. (Dkt. 58, Ex. D at 99–105). He also
testified that she saw seven doctors between Thanksgiving and Christmas 2014; but
that all of the appointments took place before November 25, 2014. (Id. 101–04). The
School District has the right to test these competing propositions and Davidson’s
credibility. It is Davidson’s allegations and his testimony that have made the lack of
these medical records prejudicial to the School District.
Davidson responds that the unproduced documents belong to third parties. It is
true Bonny’s medical records belong to Bonny and her health care providers. But
Davidson never sought leave to subpoena any health care provider. Davidson also
responds that he “substantially” complied with the discovery requests. (Dkt. 71 at

Davidson also failed in his discovery obligations by submitting a summary of Bonny’s
medical appointments from July 2014 through April 2015 as opposed to producing a copy of
the calendar itself. Assuming that this calendar is accurate, Davidson produced medical
records for only 28 of the 106 appointments listed during the July 2014 to April 2015 time
frame. That is woefully inadequate.

4

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5). To the contrary, Davidson’s production of medical records for only 26% of the
appointments does not constitute “substantial” compliance. 5
The Court is not persuaded by the cases cited by Davidson for the proposition
that imperfect discovery responses do not warrant sanctions. (Dkt. 71 at 1). In
Mayor & City Council of Baltimore v. Priceline.com Inc. the court found that the
plaintiff’s “imperfections” in supplementing its damages disclosures under FRCP
26(a)(1)(A)(iii) were harmless. 2013 WL 4507942 (D. Md. Aug. 22, 2013). By
contrast, here, the issue is not Davidson’s damages disclosures, but his failure to
produce records relevant to the School District’s defense, and such failure is not
harmless. In Girard v. Foster a state rule required the court “to impeccably detail a
party’s continuing failure to provide appropriate discovery” before imposing a
sanction of dismissal. 2013 WL 598970, at *5 (N.J. Super. Ct. App. Div. Feb. 19,
2013). Here, the Court is not considering dismissal and the Court was clear in two
court orders that Bonny’s medical records were relevant and Davidson was required
to produce them. Finally, in Knight v. Brog, the state court denied a motion to
compel because the defendant “made substantial, albeit not perfect, compliance
with plaintiff’s discovery demands.” 2015 WL 5236755, at *11 (Conn. Super. Ct.
July 31, 2015). As discussed above, Davidson has not substantially complied with
the School District’s discovery requests or this Court’s orders. Cf. United States v.

The Court rejects Davidson’s suggestion that the Court re-open discovery to allow “the
parties to each review and supplement their discovery productions.” (Dkt. 71 at 5).
Davidson has had over a year to produce the medical records at issue—records which on
April 28, 2016, counsel assured the Court had already been gathered. Such a solution would
not be fair to the School District.

5

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Manglitz, 939 F. Supp. 1211, 1220 (D. Md. 1996) (in criminal case implicating the
constitutional right to a fair trial, the court denied the defendant’s motion for a new
trial after finding no due process violation where the government disclosed the
Brady material for defendant’s use at trial).
The School District requests that the Court sanction Davidson for his
noncompliance with discovery orders by barring Davidson from offering evidence,
including testimony, that he was able to return to work from November 25, 2014,
through January 5, 2015. (Dkt. 58 at ¶ 31). The Court believes this sanction is
appropriate and narrowly tailored to the discovery violation at issue. Price v.
Wrencher, No. 13-CV-1785, 2014 WL 4269079, at *3 (N.D. Ill. Aug. 27, 2014)
(finding that prohibiting the plaintiff from asserting or defending a claim was the
appropriate sanction for her failure to comply with a court order compelling
discovery); Craftwood Lumber Co. v. Interline Brands, Inc., No. 11 C 4462, 2013 WL
4598490, at *14 (N.D. Ill. Aug. 29, 2013) (finding that the preclusion of defendant’s
two defenses and introduction of certain evidence was tailored to defendant’s
violation “because the main thrust of the outstanding discovery it refused to
produce and repeatedly failed to substantively address” was related to those
defenses). Moreover, the Court finds that no lesser sanction would be effective at
addressing Davidson’s disregard of his discovery obligations and Court orders. 6

The School District also requests that the Court sanction Davidson for failing to produce
complete tax records from August 1, 2014, to the present by barring him from claiming or
offering evidence of lost wages and damages from November 25, 2014, through the present.
(Dkt. 58 at ¶¶ 32–33). The Court denies this request without prejudice. Should this case
proceed to trial, the Court will entertain a motion in limine regarding this issue.

6

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III. CONCLUSION
For the reasons discussed above, Defendant’s Motion to Bar Testimony or Other
Evidence of Plaintiff’s Ability to Return to Work and Damages [58] is GRANTED
IN PART. Plaintiff is barred from offering evidence, including testimony, that he
was able to return to work from November 25, 2014, through January 5, 2015. The
School District’s request for attorney’s fees (id. at 7) is denied.

E N T E R:
Dated: November 23, 2016
MARY M. ROWLAND
United States Magistrate Judge

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