McKey v. U.S. Bank National Association

Filing 45

ORDER granting in part and denying in part 21 Motion to Compel; Denying as moot 21 Motion for Sanctions: 1. Plaintiff Julie McKey's Motion to Compel [Docket No. 21] is GRANTED IN PART and DENIED IN PART; 2. Within 30 days of the entry of t his Order, Defendant U.S. Bank shall produce all documents pertaining to the discipline, termination, performance conduct, or performance evaluation, of all employees who reported directly to Yvonne Meshikomer from January 1, 2015 to present. Any per sonal information, including medical information or social security numbers, may be redacted; 3. Pursuant to the agreement reached by the parties, Plaintiff may re-open the depositions of Keith Frohlicher and Defendant's corporate representative on the following topics: a. For Keith Frohlicher: Exhibit 68; b. For Defendant's corporate representative under Fed. R. Civ. P. 30(b)(6): Plaintiff's qualifications relative to the qualifications for the Image Processor 2 and Image Processor 3 positions. The depositions shall take place no later than 15 days after the entry of this Order. 4. Plaintiff's request for sanctions is DENIED as moot. (Written Opinion) Signed by Magistrate Judge David T. Schultz on 7/9/2018. (KAR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

JULIE MCKEY,

CIVIL NO. 17-5058 (JRT/DTS)

Plaintiff,
v.

ORDER

U.S. BANK NATIONAL ASSOCIATION,
Defendant.

Brian Rochel, Esq., Teske, Katz, Kitzer & Rochel, PLLP, 222 S. 9th St. #4050,
Minneapolis, MN 55402 for plaintiff.
Ellen Brinkman. Esq. and Kristin Emmons, Esq., Briggs & Morgan, PA, 80 S. 8th St.
#2200, Minneapolis, MN 55402 for defendant.

INTRODUCTION
In her lawsuit alleging age-based employment discrimination, Plaintiff Julie
McKey (“McKey”) seeks (1) to compel the production of personnel files for similarly
situated employees and (2) leave to continue the depositions of relevant witnesses
based upon such production. 1 For the reasons addressed below, the Motion to Compel
is GRANTED IN PART and DENIED IN PART.

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McKey had also initially moved for sanctions and sought leave to continue the
deposition of certain witnesses based upon conduct in their depositions. See Pl.’s Mot.
to Compel and for Sanctions, Docket No. 21. Prior to the hearing on the motion, the
parties resolved these issues and McKey accordingly withdrew her motion for sanctions
and request to re-open the relevant depositions. See Pl.’s Second Am. Meet and Confer
Statement 7, Docket No. 39. That resolution is incorporated into this Order.
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FACTS
McKey worked for Defendant U.S. Bank National Association (“U.S. Bank”) for 41
years. Compl. ¶ 7, Docket No. 1. In May 2016, McKey was placed on a sixty-day
performance improvement plan (“PIP”). Compl. at ¶ 27. After being placed on the PIP,
McKey informed human resources personnel she believed she was being subjected to
age discrimination. Compl. at ¶ 28. In October 2016, McKey’s employment was
terminated by U.S. Bank. Compl. at ¶ 7, Docket No. 1. McKey alleges her termination
was based upon her age or her report to human resources. Compl. ¶¶ 48, 52. U.S.
Bank maintains that McKey was terminated for performance-based issues. Def. Mem.
Opp. to Mot. to Compel and for Sanctions 2-3, Docket No. 27.
On May 15, 2018, McKey brought this Motion to Compel. The remaining
discovery dispute is based on McKey’s April 2, 2018 request that U.S. Bank produce the
complete personnel records of each employee who reported directly to Yvonne
Mehsikomer from January 1, 2013 to present. Rochel Decl. Ex. K, at 1 (Pl.’s Req. Prod.
No. 29), Docket No. 30. Two days later, McKey proposed to narrow the scope of the
requested documents to those pertaining to discipline, termination, performance
conduct, or performance evaluation and limited the time period from January 1, 2015 to
present. Pl.’s Second Am. Meet and Confer Statement ¶ 9, Docket No. 39. This
narrowed the number of individuals whose records would be subject to the request to
nineteen. Def. Mem. Opp. 6, Docket No. 27. U.S. Bank objected to the personnel record
request made on April 2, 2018 on multiple grounds. Rochel Decl. Ex. L, at 3, Docket No.
30. U.S. Bank maintains the proposed April 4th narrowing of the scope of documents is
still disproportionate to the needs of the case.

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ANALYSIS
I.

Discovery standard
Rule 26 of the Federal Rules of Civil Procedure allows a party to “obtain

discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Generally,
Rule 26 “is to be construed broadly and thus encompasses ‘any matter that bears on, or
that reasonably could lead to other matters that could bear on, any issues that is or may
be in the case.’” In re Mild Prods. Antitrust Litig., 84 F.Supp.2d 1016, 1027 (D. Minn.
1997) (quoting Oppenheimer Fund Inc., v. Sanders, 437 U.S. 340, 351 (1978)).
However, courts must balance the interests of the case with the burdens discovery may
impose. Amador v. U.S. Bank Nat’l Assoc., 2017 WL 5151680, at *5 (D. Minn. Nov. 6,
2017) (stating that the new proportionality language requires “giving due consideration
to the importance of the information, issues of access, and the balance between the
burden of production and expense and the benefit of the information”).
II.

McKey’s record request
A. Proportionality
U.S. Bank argues that McKey’s motion to compel should be denied because the

requested discovery is disproportionate to the needs of the case. Def. Mem. Opp. 13,
Docket No. 27. U.S. Bank contends that 2015 Amendments to Rule 26(b)(1),
specifically the addition of the word “proportional”, alter the Court’s analysis of discovery
requests. Id. However, the concept of proportionality has been enshrined within 26(b)
since the 1983 Amendments. See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to
2015 amendment. Furthermore, “restoring the proportionality calculation to Rule 26

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does not change the existing responsibilities of the court.” Id. Most of the proportionality
factors set forth in 26(b)(1) have been part of the discovery rules since the 1983 and
1993 Amendments. Id. In 2015, the committee added the sixth factor regarding parties’
relative access to information but made clear that this addition was simply to make
explicit that which had already been implied within rule 26(b). Id.
McKey’s narrowed request is relevant and proportionate to the needs of this
case. Because McKey’s claim is one of unlawful discrimination, it will almost certainly
“require indirect, inferential, or circumstantial evidence” to succeed. Onwuka v. Federal
Express Corp., 178 F.R.D. 508, 516 (D. Minn. 1997). In employment discrimination
cases, 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.” Ridout v. JBS USA, LLC, 716 F.3d
1079, 1084-85 (8th Cir. 2013). While the comparator evidence is strongest “when the
circumstances faced by the putative comparators are most similar to the plaintiff’s,” the
plaintiff is not required to compare herself to employees who “engaged in the exact
same offense.” 2 Id. at 1085 (internal quotations omitted).
Here, McKey seeks the disciplinary records of individuals similarly situated to
herself in that they reported in recent years to the same immediate supervisor who
recommended McKey’s termination. She need not limit her request to those fellow

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U.S. Bank relies upon Johnson v. Securitas Security Services USA, Inc., 769 F.3d 605
(8th Cir. 2014), to argue that McKey has failed to show that each employee whose
records she seeks is “similarly situated in all relevant respects” and “engaged in the
same conduct” as McKey. Def.’s Mem. Opp. 10. However, that is the standard a plaintiff
must meet at the summary judgment stage for the court to draw a favorable inference
for her on the issue of pretext. See Securitas, 769 F.3d at 613. This standard does not
define the limits of discovery.
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employees who were on a PIP, as it would be relevant to show that younger employees
who committed similarly serious infractions were never placed on PIP. See id. at 1086
(holding that an employee who was also accused of poor performance by the same
supervisor as plaintiff, but who was demoted instead of fired, was a valid comparator).
McKey is not claiming that younger individuals on a PIP were treated more leniently, but
that younger employees under Meshikomer’s supervision were.
Further, it is not clear how else McKey could obtain the detailed information
contained in the disciplinary records of other employees. Such records are in the sole
possession of U.S. Bank. Deposing other employees and agents of U.S. Bank would be
no substitute for the complete and detailed picture that the full set of disciplinary records
may provide.
Finally, U.S. Bank has failed to demonstrate that, given the potentially dispositive
nature of the records and the fact that it has sole possession of them, the cost of
producing the records would be unduly burdensome relative to the value of the
information to the case. While U.S. Bank suggests that it could take 3-5 hours to
compile each file requested, see Guse Decl., it does not offer a monetary estimate of
that time. See id. Even if the costs in time and money are significant, they are
commensurate to the needs of the case for the reasons previously noted. Cf. Amador v.
U.S. Bank Nat’l Ass’n, 2017 WL 5151680, at *5-6 (D. Minn. Nov. 6, 2017) (overturning
the magistrate’s denial of a motion to compel production of Customer Advice Debit slips
from a single branch because a “properly limited” discovery request was not overly
burdensome given the defendant claimed it fired the plaintiff, in part, for misusing the
CAD slips).

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B. Appropriate scope
While the records are proportionate, and thus discoverable, the Court has
previously recognized that employment records should be limited in their scope to
balance the needs of the case with the privacy interests of the non-party employees.
See Onkwuka v. Federal Express Corp., 178 F.R.D. 508 (D. Minn. 1997) (holding that
employment records should be limited to a three year period, only those employees that
worked at the same facility as the plaintiff, and only information that related to
discipline); Raddatz v. Standard Register Co., 177 F.R.D. 466 (D. Minn. 1997) (holding
that the files for over 100 employees over ten years was too broad, narrowing the
information available and reducing the time frame to four years). While the Court should
take appropriate steps to safeguard the privacy interests of non-party employees,
pertinent portions of employee records and communications about other employees that
are tied to needs of a party’s claims remain discoverable. See Cardenas v. Prudential
Ins. Co. of America, 2003 WL 244640, at *1 (D. Minn. Jan. 29, 2003); Schaadt v. St.
Jude Medical S.C., Inc., 2006 WL 7137404, at *10 (D. Minn. May 1, 2006).
Here, McKey limited the scope of her request to documents pertaining to
discipline, termination, performance conduct, or performance evaluation, of employees
who reported directly to Yvonne Mehsikomer from January 1, 2015 to present. Pl.’s
Second Am. Meet and Confer ¶ 9. Along with the existing protective order, this
narrowed scope is satisfactory to “assure that only those portions of the pertinent
personnel files, which are clearly relevant to the parties’ claims” are disclosed and that
the privacy interests of the non-party employees are disturbed only so far as necessary
to litigate the claims at issue. See Onkwuka, 178 F.R.D. at 517. Further, McKey has

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satisfactorily articulated why she needs the documentation and how it relates to her
claims. She is entitled to the narrowed scope of documents she has requested.
ORDER
For the reasons set forth above, IT IS HEREBY ORDERED THAT:
1. Plaintiff Julie McKey’s Motion to Compel [Docket No. 21] is GRANTED IN PART
and DENIED IN PART;
2. Within 30 days of the entry of this Order, Defendant U.S. Bank shall produce all
documents pertaining to the discipline, termination, performance conduct, or
performance evaluation, of all employees who reported directly to Yvonne
Meshikomer from January 1, 2015 to present. Any personal information,
including medical information or social security numbers, may be redacted;
3. Pursuant to the agreement reached by the parties, Plaintiff may re-open the
depositions of Keith Frohlicher and Defendant’s corporate representative on the
following topics:
a. For Keith Frohlicher: Exhibit 68;
b. For Defendant’s corporate representative under Fed. R. Civ. P. 30(b)(6):
Plaintiff’s qualifications relative to the qualifications for the Image
Processor 2 and Image Processor 3 positions.
The depositions shall take place no later than 15 days after the entry of this
Order.
4. Plaintiff’s request for sanctions is DENIED as moot.
Dated:

July 9, 2018

s/ David T. Schultz
DAVID T. SCHULTZ
United States Magistrate Judge

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