Gilleylen v. City of Tupelo, Mississippi
ORDER granting in part and denying in part 47 Motion to Appeal Magistrate Judge Decision. Signed by District Judge Sharion Aycock on 8/2/2017. (adm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 1:16CV94-SA-DAS
CITY OF TUPELO, MISSISSIPPI
This matter arises from Plaintiff’s Objection to the Magistrate Judge’s Order regarding
certain discovery issues. Plaintiff filed her Objection  to the Order and its corrected version
[42, 43]. Defendant responded , and this motion is ripe for review.
A magistrate judge may rule directly on a nondispositive pretrial motion. 28 U.S.C. §
636(b)(l)(A). When objections are raised to such a ruling, a district court must consider them and
“modify or set aside any part of the order that is clearly erroneous or contrary to law.” FED. R.
CIV. P. 72(a); Castillo v. Frank, 70 F.3d 382, 385 (5th Cir. 1995). Under this deferential
standard, a magistrate judge’s decision must be affirmed unless “on the entire evidence [the
court] is left with a definite and firm conviction that a mistake has been committed.” United
States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948).
Federal Rule of Evidence 401(a) defines relevant evidence as that which “has any
tendency to make a fact more or less probable than it would be without the evidence . . . .”
However, information within the scope of discovery need not be admissible in evidence to be
discoverable. FED. R. CIV. P. 26(b)(3). Under Rule 26, a party may request production of
documents and things, including any nonprivileged matter that is relevant to any party’s claim or
defense and proportional to the needs of the case, considering the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit. Id. The Fifth Circuit
has traditionally adhered to a broad and liberal treatment of the federal discovery rules. United
States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991) (citing Hickman v. Taylor, 329 U.S. 495, 501
67 S. Ct. 385, 388 91 L. Ed. 451 (1947)).
Furthermore, although plaintiff is not entitled to embark on a fishing expedition,
“[d]iscovery is not to be denied because it relates to a claim or defense that is being challenged
as insufficient.” 8 Charles Alan Wright, et al., Federal Practice & Procedure § 2008, at 137 (3d
A. The “201 Files”
Plaintiff has been a police officer for the City of Tupelo for sixteen years. She complains that
while working as an officer, she was wrongfully denied a promotion to sergeant multiple times.
She alleges that although other similarly situated candidates were less qualified than she was,
they were promoted to sergeant because they are white males. Purportedly, at least one of these
successful candidates, Lee Miller, was promoted even though he committed serious disciplinary
offenses. Plaintiff posits that no disciplinary action has ever been taken against her, making her
more qualified for the position. Therefore, Plaintiff requested the production of Tupelo Police
Department officer files maintained for Lee Miller and Clay Hassell, another successful
candidate. These files, which contain personnel and disciplinary information, are generally
known as the “201 files.” Defendant counters that the panel considered only the performance by
each applicant at their interview in the scoring, and did not consider the information within the
files. However, deposition testimony showed that members of the interview panel sometimes
took personal experiences with the officers they were interviewing into account when scoring.
The Magistrate Judge ruled that the evidence contained in Miller and Hassell’s files is
irrelevant, because Plaintiff had not shown a basis for their compulsion. According to the
Magistrate Judge, “defense counsel was adamant that the interview panel was not presented with
any of this information.” The parties have now fully briefed their arguments in this matter, and
the Court is more aware of Plaintiff’s basis for seeking production of the “201 files.” The
evidence is arguably essential to Plaintiff’s claim that the panel was discriminatory in making its
choice, and that the Chief of Police merely gave cursory review of the panel’s findings.
Therefore, the Plaintiff’s objection is sustained as to Requests for Production Numbers 14(a),
14(c), 14(d), 14(f), and 16.
B. Statistical and Related Evidence
Plaintiff’s Request for Production Number 14(b) sought interview sheets relating to the
award of a Sergeant’s position to Chamilla Brown. Plaintiff alleged that Brown is white, and that
Brown had substantially fewer qualifications than another unsuccessful black applicant did, but
that she received a promotion anyway. However, according to Brown’s submitted affidavit, she
is of Hispanic ethnicity. The Magistrate Judge found Plaintiff’s allegation regarding Brown to be
too tenuously connected to Plaintiff’s cause to be considered relevant. The Plaintiff’s problems
lie with the interview panel and Chief who passed her over for those outside of the protected
class. Anecdotes about other employees cannot establish that discrimination was a company’s
standard operating procedure unless those employees are similarly situated to the plaintiff.
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1221 (5th Cir. 1995) (overruled on other grounds
by Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003)). Plaintiff
has not presented argument that the unnamed candidate was similarly situated to Plaintiff.
Furthermore, a magistrate judge’s non-dispositive order may only be set aside if it “is clearly
erroneous or is contrary to law.” FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A) (magistrate
judge’s nondispositive orders may be reconsidered only “where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary to law”). Therefore, the Magistrate
Judge’s order stands, as Plaintiff has not shown it is clearly erroneous or contrary to law.
Finally, Plaintiff sought information regarding all applications for police officer positions
since Bart Aguirre became Chief of Police, including those who were hired and those who were
not. Specifically, Plaintiff hopes to examine applications submitted by African American
applicants. Plaintiff wishes to compare African American hires to non-African American hires,
on the theory that the statistical evidence will show that Defendant discriminates against African
Americans “as a class.” However, Plaintiff complains of specific instances of disparate treatment
under Section 1981 in her Complaint, but she has not alleged race based disparate impact. See
National Ass’n of Gov’t Employees v. City Pub. Serv. Bd., 40 F.3d 698, 714–15 (5th Cir. 1994)
(“To prove a cause of action under section 1983 based on a violation of equal protection,
Plaintiffs are required, as under section 1981, to demonstrate intentional discrimination; mere
disparate impact will not suffice”). Additionally, this evidence would not tend to suggest that the
four patrol lieutenants on her interview panel were discriminatory in failing to promote her,
specifically, because they did not necessarily conduct interviews for other police officer
positions. Therefore, Plaintiff’s Objection is overruled regarding Requests for Production 14(b),
15, 18, and 17.
The Magistrate Judge’s decision is overruled in part; error has been found regarding.
documents 14(a), 14(c), 14(d), 14(f), and 16. However, the objection to Magistrate Judge’s
decision regarding Requests for Production 14(b), 15, 18, and 17 is overruled.
SO ORDERED this the 2nd day of August, 2017.
/s/ Sharion Aycock
UNITED STATES DISTRICT JUDGE
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