EEOC

Filing 174

ORDER granting 168 Motion for Protective Order. Defendant may not depose Ayan Aden, Mohamud Einab and Hodan Ibrahim during Phase I of this litigation. Ordered by Magistrate Judge F.A. Gossett. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
V.
JBS USA, LLC,
Defendant.

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8:10CV318

ORDER

This matter is before the court on Plaintiff and Plaintiff/Intervenors’ (collectively
referred to herein as “Plaintiffs”) Motion for Protective Order (filing 168). Plaintiffs request
that this court enter a protective order barring Defendant from deposing Ayan Aden,
Mohamud Einab and Hodan Ibrahim. For the reasons explained below, Plaintiffs’ Motion
will be granted.
BACKGROUND
On August 30, 2010, Plaintiff EEOC filed a complaint alleging that Defendant
engaged in a pattern or practice of discrimination against its Somali Muslim employees at its
Grand Island, Nebraska facility. (Filing 1.) On November 8, 2010, Abdi Mohamed and
multiple other aggrieved employees filed a complaint in intervention. (Filing 13.) On
January 10, 2011, Farhan Abdi and forty-eight other aggrieved employees filed a complaint
in intervention. (Filing 40.) On August 2, 2011, the EEOC filed an amended complaint
which identified 153 individuals for whom the EEOC is seeking relief. (Filing 99.)
On December 31, 2010, Plaintiff EEOC filed a motion to bifurcate the proceedings
in this lawsuit. (Filing 38.) Defendant opposed the motion, but after lengthy negotiations,
the parties entered into a bifurcation agreement which was filed on April 15, 2011, and
adopted and approved by the court on May 26, 2011. (Filings 76 & 81.) The bifurcation
agreement divided discovery and the trial into Phase I and Phase II, with Phase I to address

the pattern or practice claims and Phase II to involve the individual claims and relief. (Filing
76-1 at CM/ECF pp. 1-7.) With respect to depositions, the bifurcation agreement provides
as follows:
C.

Depositions

(1) Defendant may depose up to 10 “aggrieved employees,” as defined in the
EEOC’s First Amended Complaint and who are Intervenors in this suit,
selected by Plaintiffs as those upon whom they will rely to prove their pattern
or practice claims. Defendant may depose up to 10 “aggrieved employees,”
as defined in the EEOC’s First Amended Complaint and who are Intervenors
in this suit, selected by Defendant. Defendant may depose any combination
of up to 10 of the following additional non-expert witnesses, including
non-aggrieved Somali Muslim employees who worked at the Grand
Island, Nebraska facility during the relevant time period, non-employee
witnesses, Union and co-worker witnesses, management (corporate and
Grand Island) witnesses, and/or 30(b)(6) witnesses.
(3) Additional depositions may be taken upon written consent of all
parties or leave of Court upon a showing of good cause. Any party may
seek written consent or leave of court to depose affiants of statements
submitted in support of or opposition to a dispositive motion. No party waives
the right to object to depositions or discovery.
(Filing 76-1 at CM/ECF p. 3) (emphasis added.)
On November 21, 2011, Defendant served deposition notices for Ayan Aden,
Mohamud Einab and Hodan Ibrahim. These individuals are “aggrieved employees” as
defined in the EEOC’s First Amended Complaint. However, although each of these
individuals filed charges of discrimination with the EEOC, and the EEOC is seeking relief
on their behalf, they have not intervened as plaintiffs in this litigation.
Plaintiffs wish to preclude Defendant from deposing Ayan Aden, Mohamud Einab and
Hodan Ibrahim, arguing that the bifurcation agreement, by its terms, bars Defendant from
deposing these individuals during Phase I discovery. Defendant contends that the bifurcation
agreement permits it to depose these individuals as “co-worker witnesses” or, alternatively,
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because good cause exists to do so.
ANALYSIS
The issue presented here is whether the bifurcation agreement permits Defendant to
depose Ayan Aden, Mohamud Einab and Hodan Ibrahim, who are non-intervening,
aggrieved employees, during Phase I of this litigation and, if not, whether good cause
nevertheless exists to depose these individuals at this time. The court concludes that the
bifurcation agreement does not contemplate taking the depositions of these individuals
during Phase I of the litigation and that Defendant has not shown good cause to do so.
The bifurcation agreement allows Defendant to select and depose up to ten
intervening, aggrieved employees. The agreement also permits Defendant to depose up to ten
individuals from the following categories: “non-aggrieved Somali Muslim employees who
worked at the Grand Island, Nebraska facility during the relevant time period, non-employee
witnesses, Union and co-worker witnesses, management (corporate and Grand Island)
witnesses, and/or 30(b)(6) witnesses.” (Filing 76-1 at CM/ECF p. 3) (emphasis added.)
Defendant maintains that it should be allowed to depose Ayan Aden, Mohamud Einab and
Hodan Ibrahim as “co-worker” witnesses. However, the court disagrees with Defendant’s
contention that the proposed deponents qualify as “co-worker” witnesses within the meaning
of the bifurcation agreement.
The purpose of the bifurcation agreement was to limit the number of aggrieved
employees who could be deposed during Phase I of this litigation and contemplates that the
depositions of aggrieved individuals be limited to those who intervened in the suit. Contrary
to Defendant’s position, the agreement does not contemplate that “co-workers” include
aggrieved individuals who have a stake in the litigation. The fact that Union and co-worker
witnesses are grouped together in the same sentence indicates the parties’ intention that coworker witnesses, like Union witnesses, are to be third-party individuals who may have
information bearing on whether Defendant engaged in a pattern or practice of discrimination
against Somali Muslim employees, not aggrieved employees who themselves were allegedly
discriminated against. This intent is made more apparent by the categorization of “non3

aggrieved Somali Muslim employees” as additional witnesses who may be deposed in Phase
I.
Moreover, Defendant has not shown good cause to depose Ayan Aden, Mohamud
Einab and Hodan Ibrahim at this time. Although these individuals’ testimony is relevant to
the issues involved in this action, Defendant agreed to limit the scope of discovery in Phase
I to aggrieved employees who have intervened in the suit. Aside from relevancy, Defendant
has not offered any legitimate justification for deposing these individuals at this stage.
Defendant will have the opportunity to depose Ayan Aden, Mohamud Einab and Hodan
Ibrahim during Phase II of this litigation, should it still desire to do so.
IT IS ORDERED:
1.

Plaintiffs’ Motion for Protective Order (filing 168) is granted.

2.

Defendant may not depose Ayan Aden, Mohamud Einab and Hodan Ibrahim
during Phase I of this litigation.

DATED December 7, 2011.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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