Sikora v. National Indemnity Company, et al

Filing 51

MEMORANDUM AND ORDER that the order of the magistrate judge 49 is affirmed and plaintiff's 50 Statement of Objection is overruled. Ordered by Senior Judge Lyle E. Strom. (ADB)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
NICHOLUS B. SIKORA,

)
)
Plaintiff,
)
)
v.
)
)
NATIONAL INDEMNITY COMPANY,
)
a Nebraska corporation; and
)
JANELLE KAY, a citizen of the )
State of Iowa; and KAREN
)
RAINWATER, a citizen of the
)
State of Nebraska,
)
)
Defendants.
)
______________________________)

8:13CV68

MEMORANDUM AND ORDER

This matter is before the Court on the plaintiff,
Nicholus Sikora’s (”Sikora”), Statement of Objections to
Magistrate Judge's Order (Filing No. 50).

At issue is Magistrate

Judge Zwart's September 27, 2013, order (Filing No. 49) which
denied in part and granted in part Sikora's motion to compel
discovery from the defendants (Filing No. 34).

Sikora relies

upon his previous filings in this matter for support of his
objection (Filing Nos. 35, 36, 46, 47).

Because the Magistrate

Judge’s order is not “clearly erroneous or contrary to law,” the
Statement of Objections will be denied.
I.

Factual and Procedural Background.
The defendants, National Indemnity Company (“NICO”),

Janelle Kay (“Kay”), and human resources vice president Karen

Rainwater (“Rainwater”) (collectively “Defendants”), once
employed Sikora as an underwriter.

After working at NICO for

three years, Sikora took eight days of family leave after the
birth of his new baby son (Id. at ¶ 7, 19, 20).

Two days after

returning from leave, the Defendants gave Sikora a Conduct
Evaluation and placed him on probation (Id. at ¶ 21).

The

Conduct Evaluation required Sikora to meet several goals at the
end of thirty days or face the possibility of termination (Id.).
Ultimately, Sikora resigned from NICO (Id. at ¶ 27).
Sikora then filed a Constructive Discharge Claim
against the Defendants for their alleged retaliation against
Sikora’s family leave (Id.).

Importantly, the Defendants claim

that the Conduct Evaluation was not premised upon retaliation but
rather the “excessive number of emails [Ms. Kay] discovered” in
Sikora’s company email account (Filing No. 39, at 2-3).
Furthermore, the Defendants claim to have discovered several
deficiencies in Sikora’s work which triggered the Conduct
Evaluation (Id. at 3).
In order to rebut the allegation that Sikora’s personal
email usage was “excessive” compared to other employees, Sikora
requested that the Defendants produce the work and personal
emails of Kay, Rainwater, Don Wurster, John Arendt, Phil Wolf,
Tracy Gulden from August 22, 2011, until August 19, 2013 (Filing
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No. 34, at 4-7).

These persons include the executive leadership

of NICO (Filing No. 39, at 11-14).

The Defendants objected to

the request and Sikora filed a motion to compel (Id.)
On September 25, 2013, Magistrate Judge Zwart issued
her order on the motion to compel.

The judge ordered the

Defendants to provide copies of all emails sent from or received
by Janelle Kay, Don Wurster, and Karen Rainwater between November
2012 and January 2013 which addressed Sikora’s job performance,
conduct evaluations, and use of family and medical leave (Filing
49).
(Id.).

The judge denied the remainder of Sikora’s motion to compel
On September 27, 2013, Sikora filed his objections

(Filing 50).

Pursuant to Rule 72, Sikora claimed that the

magistrate judge’s determination was “clearly erroneous and/or
contrary to law” (Id. at 2).
II. Law and Analysis
“In discovery matters, the magistrate judge is afforded
great deference.”

Case v. Platte County, No. 8:03CV160, 2004 WL

1774117, at *1 (D. Neb. July 21, 2004); Hajek v. Kumho Tire Co.,
No. 4:08CV3157, 2010 WL 1292447, at *2 (D. Neb. Mar. 30, 2010);
Bennie v. Munn, 4:11CV3089, 2013 WL 4761383, at *2 (D. Neb. Sept.
4, 2013).

A court may reverse a magistrate judge's decision only

when clearly erroneous or contrary to law.

“Under a clearly

erroneous standard, a district court can reverse a magistrate
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judge's order only if the court is left with the definite and
firm conviction that a mistake has been committed.”

Id.

“Under

a contrary to law standard, a district court can reverse a
magistrate judge's order only if the order fails to apply the
relevant law.” Id.
Therefore, the Court’s analysis turns on whether the
magistrate judge was correct in partially denying the motion to
compel.

“Generally, parties may obtain discovery regarding any

unprivileged matter so long as it is relevant to the subject
matter of the pending action.”

McGowan v. Gen. Dynamics, Corp.,

794 F.2d 361, 363 (8th Cir. 1986).

However, courts may limit

discovery where requests are excessively broad and call for the
production of irrelevant information.

See id.

Judge Zwart's application of law was succinct and
sufficient.

The magistrate judge correctly concluded the motion

to compel failed because the request for discovery was overly
broad, encompassed confidential and private communications, and
included information which was likely to be irrelevant.
First, Sikora’s requested was overly broad because it
included two years worth of emails from the Defendants and NICO’s
employees.

Also, Sikora's request was not targeted to the issues

in this case; that is, the requests were not tailored to obtain
documents specifically referencing Sikora and the requests sought
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documents which occurred seven months after the alleged events
giving rise to Sikora's claims.

The magistrate judge correctly

tapered the request for discovery to include references to
Sikora, his leave, and his Conduct Evaluation.
Second, Sikora’s request for personal emails was
private and likely irrelevant.

In order to prove pretext, a

plaintiff may show “the employer meted out more lenient treatment
to similarly situated employees . . . who did not engage in
protected activity.”

Smith v. Allen Health Sys., Inc., 302 F.3d

827, 835 (8th Cir. 2002).

“It is the employee's burden, however,

to prove that the compared employees were similarly situated in
all relevant respects.”

Id.

Sikora did not meet this burden.

The tenants of discovery “should not be misapplied so as to allow
fishing expeditions in discovery.”
*2.

Hajek, 2010 WL 1292447, at

Accordingly,
IT IS ORDERED that the order of the magistrate judge is

affirmed and plaintiff’s Statement of Objection is overruled.
DATED this 4th day of October, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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