Benner v. Saint Paul Public Schools, I.S.D. #625

Filing 69

ORDER granting in part 56 Motion to Compel(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 10/5/2018. (BJP)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Aaron A. Benner,

Case No. 0:17-cv-01568-SRN-KMM
Plaintiff,

v.
ORDER

Saint Paul Public Schools, I.S.D. #625
et al.,
Defendants.

The Plaintiff, Aaron Benner, alleges that the Defendants, Saint Paul Public
Schools Independent School District #625 and Lisa Gruenewald, discriminated
against him on the basis of his race; retaliated against him for engaging in protected
activity; and constructively discharged him from his employment as a teacher.
Mr. Benner contends that this discrimination and retaliation occurred after he voiced
opposition at a School Board meeting in May of 2014 to the School District’s
implementation of a “racial equity” policy. He claims that after he stated his
opposition to the policy, he was singled out for investigations, discipline, and transfer.
Mr. Benner’s case is now before the Court on his motion to compel discovery from
the Defendants.

The Comparator Discovery Dispute
Mr. Benner asserts that the unlawful purpose of the School District’s actions is
demonstrated by the fact that it did not investigate or discipline other teachers when it
received complaints about conduct that was similar to that for which he was targeted.
To obtain evidence of such disparate treatment, Mr. Benner requested that the
Defendants produce information in discovery about complaints made against other
comparator teachers and the School District’s response to those complaints.

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The parties disagree on the proper scope of such comparator discovery. On
July 12, 2018, the Court addressed this issue through its informal discovery dispute
resolution process. In an effort to balance the interests of both sides, the Court
required the Defendants to provide “four years of information about investigations of
other staff members at Mr. Benner’s former school … in a chart form that protects
the privacy interests of other staff members.” Min. of July 12, 2018 Tel. Hr’g, ECF
No. 54. On August 27, 2018, the Defendants produced a final version of the chart
that was prepared by defense counsel following the Court’s telephonic hearing. Madia
Decl., Ex. D, ECF No. 58-20.
Mr. Benner now asserts that the chart provided by the Defendants was
insufficient for purposes of this litigation and that the Defendants have failed to
provide sufficient comparator discovery as required by the Federal Rules of Civil
Procedure. Three document requests have been placed in issue by Mr. Benner’s
motion.1 These requests read as follows:
REQUEST NO. 18: All complaints from any source regarding any
teacher employed at Johnson Elementary from January 1, 2010 to
present.
REQUEST NO. 30: All documents referring or relating to any
investigation you initiated regarding any teacher’s conduct at Johnson
Elementary from January 1, 2013 through December 31, 2016.
REQUEST NO. 31: All documents referring or relating to any oral or
written reprimands you gave any teacher at Johnson Elementary from
January 1, 2013 through December 31, 2016.

In the memorandum in support of Mr. Benner’s motion, he also identified two
interrogatories that sought information about possible comparators. Pl.’s Mem. at 8
(quoting Interrogatories 14 and 15), ECF No. 59. At the hearing, Mr. Benner’s
counsel confirmed that the plaintiff has otherwise obtained the information sought by
these interrogatories and withdrew the request for supplemental answers. Therefore,
this Order does not require any supplementation of interrogatory answers by the
Defendants.
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Pl.’s Mem. at 9.

Limitations Confirmed at the Hearing
During the hearing, the Court discussed with plaintiff’s counsel the scope of
documents Mr. Benner wants the Defendants to produce in response to these
requests. Referencing the August 27, 2018 chart, plaintiff’s counsel confirmed that
Mr. Benner: (1) is only interested in obtaining documents about other teachers (both
tenured and probationary); (2) he not seeking to expand the production beyond the
four-year period established during the Court’s informal discovery dispute resolution
proceedings; and (3) he does not seek documents for teachers at other schools. A total
of 15 teachers are identified on the August 27th chart.

Discussion
With these limitations in mind, the Court concludes that Mr. Benner is entitled
to an Order, pursuant to Federal Rule of Civil Procedure 37, compelling the
production of documents. Courts recognize that “[i]in employment cases, proof of
unlawful discharge by indirect or circumstantial evidence underscores the need for
broad discovery.” Sturge v. Nw. Airlines, Inc., No. 05-cv-1665 (DSD/SRN), 2010 WL
1486493, at *1 (D. Minn. Apr. 13, 2010); see also Wagner v. Gallup, Inc., No. 12-cv-1816
(JNE/TNL), 2013 WL 11897797, at *3 (D. Minn. Sept. 18, 2013) (“Proving unlawful
discrimination might require indirect, inferential, or circumstantial evidence, which
accentuates the need for broad discovery.”). This means that “a plaintiff may offer
comparator evidence to show that they were treated differently than other employees
who were ‘similarly situated in all relevant respects’ for committing ‘infractions of
comparable seriousness.’” McKey v. U.S. Bank Nat’l Ass’n, No. 17-cv-5058 (JRT/DTS),
2018 WL 3344239, at *2 (D. Minn. July 9, 2018) (quoting Ridout v. JBS USA, LLC,
716 F.3d 1079, 1084–85 (8th Cir. 2013)); see also Onwuka v. Federal Express Corp., 178
F.R.D. 508, 516–17 (D. Minn. 1997) (indicating that discovery concerning other
employees is generally “limited to employees who are similarly situated to the
Plaintiff”). However, “the plaintiff is not required to compare herself to employees

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who engaged in the exact same offense.” McKey, 2018 WL 3344239, at *2 (internal
quotation marks omitted).
Here, the Court finds that the 15 teachers who are identified on the
Defendants’ August 27, 2018 chart are sufficiently similarly situated to Mr. Benner for
purposes of discovery. To obtain comparator evidence he may use to prove his claim,
Mr. Benner is entitled to receive documents concerning any complaints,
investigations, and reprimands for these teachers. The documents at issue are relevant
to Mr. Benner’s claims as well as Defendants’ defenses and they are proportional to
the needs of the case, with the Court placing significant emphasis on considerations
of the importance of the discovery in resolving the issue and the parties’ relative
access to relevant information. See Fed. R. Civ. P. 26(b)(1).
The Defendants’ arguments that the information discussed above should not
be discoverable are unpersuasive. First, Defendants contend that documents showing
complaints, investigations, and reprimands or discipline for probationary teachers and
teachers who worked for a different principal are not discoverable because those
individuals are not similarly situated in all relevant respects to Mr. Benner. Even if the
District Court ultimately determines that these individuals are not valid comparators,
that does not mean they are not discoverable. In support of their “same supervisor”
argument, Defendants rely upon language in appellate cases describing the “similarly
situated” analysis when reviewing district court orders granting summary judgment or
judgment as a matter of law. Defs.’ Mem. at 18–19 (citing Edwards v. Hiland Roberts
Dairy, Co., 860 F.3d 1121 (8th Cir. 2017) (summary judgment appeal); Johnson v.
Securitas Sec. Servs. USA, Inc., 769 F.3d 605 (8th Cir. 2014) (summary judgment appeal);
Bone v. G4S Youth Servs., LLC, 686 F.3d 948 (8th Cir. 2012) (summary judgment
appeal); Clark v. Runyon, 218 F.3d 915 (8th Cir. 2000) (appeal from judgment as a
matter of law)). Similarly, Defendants cite summary-judgment decisions in support of
their position that discovery regarding any probationary teacher should be foreclosed.
See Def.’s Mem. at 20–21 (citing Linton v. Carter, No. 1:14-cv-1520, 2015 WL 4937447
(E.D. Va. Aug. 18, 2015) (summary judgment decision); Maples v. City of Madison Bd. of

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Educ., No. 5:14-cv-01031-TMP, 2016 WL 5848883 (N.D. Ala. Oct. 6, 2016) (summary
judgment decision)).
Though such decisions are not entirely inapposite, they do not directly address
the issue of the proper scope of comparator discovery. As recently explained by a
decision from this District, the “standard a plaintiff must meet at the summary
judgment stage for the court to draw a favorable inference … on the issue of pretext”
by the use of comparator evidence “does not define the limits of discovery.” McKey,
2018 WL 3344239, at *2 n.2. Fully adopting the rigorous summary-judgment standard
for defining the field of valid comparators as the controlling test for determining the
proper scope of discovery too narrowly circumscribes a plaintiff’s ability to obtain
evidence that may be needed to prove a case of an unlawful employment action.
Given that comparator evidence is generally relevant to a plaintiff’s claims in an
employment discrimination case, plaintiffs, defendants, and district courts wrestling
with the scope of comparator discovery have to draw reasonable lines based on the
appropriate considerations in a given case. See Fed. R. Civ. P. 26(b)(1), advisory
committee notes to 2015 Amendment (“The parties and the court have a collective
responsibility to consider the proportionality of all discovery and consider it in
resolving discovery disputes.”).
Second, Defendants contend that Mr. Benner should not receive discovery
about any other teacher whose alleged misconduct was “qualitatively different” from
or “more serious” than his own. Defs.’ Mem. at 24–28. Again, the Court concludes
that even if Defendants ultimately prevail on their arguments that the other 15
teachers at issue in this case are not valid comparators, the Court is not persuaded that
such a possibility defines the outer boundaries of discoverability in this case. For one
thing, Defendants alone have access to the information from which they have
advanced their arguments that the conduct at issue may be different from or worse
than Mr. Benner’s alleged misconduct. One side’s view of the importance or meaning
of information in its possession should not unilaterally control the limits of
discoverability. Moreover, contrary to Defendants’ suggestion, information pertaining

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to other teachers who were, like Mr. Benner, actually investigated may be useful in the
context of this case. Even if these other teachers will not ultimately be valid
comparators, in light of Mr. Benner’s theory that the Defendants only engaged in
comparable investigations when more significant allegations of misconduct were at
issue could be useful in suggesting that the handling of Mr. Benner’s conduct was
based on something other than legitimate employment reasons.
Finally, the Court acknowledges there are privacy interests implicated by
requiring the production of documents concerning non-party employees.2 However,
as defense counsel candidly acknowledged at the hearing, this would not be a basis to
refuse to provide discovery altogether, but presents one factor in determining if the
discovery should be ordered. Because the Court has rejected the Defendants’
contention that the comparator evidence sought by Mr. Benner is irrelevant, the
Court also concludes that the privacy concerns do not preclude disclosure. There is a
protective order in this case that is likely capable of resolving Defendants’ concerns
about this information. And plaintiff’s counsel indicated at the hearing that he would
be open to discussing the manner of production, including agreeing that redactions
would be appropriate, non-parties could be referred to by their initials alone, and the
terms of the protective order could be revisited if necessary. The Court leaves
resolution of these issues to counsel, who have both exhibited professionalism and
cooperation throughout the litigation.
ORDER
Consistent with the foregoing, IT IS HEREBY ORDERED THAT
Defendants shall produce documents responsive to Plaintiff’s document requests 18,
30, and 31 for each of the 15 teachers identified in Defendants’ August 27, 2018 chart.
The Court does not understand Mr. Benner to be requesting production of the
other teachers’ full personnel files. Indeed, the document requests at issue seek only
documents referring or relating to complaints, investigations, and reprimands or
discipline. The full personnel files likely contain other information that has no bearing
on such issues and need not be disclosed.
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Defendants are not required by this Order to produce the entire personnel files for
each of these teachers, but only those documents within the personnel files that refer
or relate to complaints, investigations, and reprimands. To the extent that Defendants
believe the current protective order in this case or appropriate redactions of identities
do not address their concerns about non-party privacy and protection of sensitive
information, the parties must meet and confer to determine whether alterations to the
protective order are required. If an agreement can be reached, the parties should file a
stipulation. If the parties disagree about the proper way to facilitate that production,
the Court prefers that they raise the issue promptly by filing very concise letters
stating their respective positions.
Date: October 5, 2018

s/Katherine Menendez
Katherine Menendez
United States Magistrate Judge

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