Kaiser v. Gallup, Inc.

Filing 105

ORDER granting in part the Defendant's 95 Motion for Protective Order. Plaintiff's Amended Notice is limited as set forth within the order. Ordered by Magistrate Judge F.A. Gossett. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SUSAN KAISER,
Plaintiff,
V.
GALLUP, INC.,
Defendant.

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8:13CV218

ORDER

This matter is before the Court on Defendant’s Motion for Protective Order (filing
95). For the reasons explained below, Defendant’s motion will be granted, in part.
BACKGROUND
Plaintiff filed suit against Defendant in the District Court of Lancaster County,
Nebraska on June 13, 2013, alleging discrimination on the basis of disability, retaliation and
wrongful termination. (Filing 1.) Defendant removed the action to this Court on July 16,
2013. (Id.)
On December 11, 2014, the Court entered an order on a motion to compel filed by
Plaintiff. (Filing 86.) Plaintiff’s motion was granted, but only in part, as the Court found that
several of Plaintiff’s discovery requests were overly broad and sought irrelevant information.
The Court determined that many of Defendant’s employees implicated by the requests were
not similarly situated to Plaintiff. In particular, the Court noted that the requests were not
limited to employees working for the same supervisor as Plaintiff or to persons subject to the
same expectations in the workplace.
Defendant requests that Plaintiff’s Third Amended Notice of Rule 30(b)(6) Deposition
(“Amended Notice”) be limited on the grounds that it seeks irrelevant information and places
an undue burden on Defendant. Primarily, Defendant contends that the topics of inquiry
should only extend to Defendant’s employees who, like Plaintiff, were members of

Defendant’s “Premier Team,” a high-performing interviewing team limited to the
interviewers with the best interviewing skills.
DISCUSSION
This Court has previously determined that the scope of discovery should be limited
to employees who were similarly situated to Plaintiff in all relevant respects. Based on the
information before it, the Court finds that the individuals included in this group are members
of Defendant’s “Premier Team.” These employees were subject to the same job standards
and expectations as Plaintiff. See Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605,
613 (8th Cir. 2014) (quotation omitted) (“[I]ndividuals used for comparison must have dealt
with the same supervisor, have been subject to the same standards, and engaged in the same
conduct without any mitigating or distinguishing circumstances.”) The topics set forth in the
Amended Notice largely resemble the discovery requests that were the subject of the earlier
motion to compel. Like the earlier discovery requests, the topics outlined in the Amended
Notice encompass irrelevant information and are unduly burdensome. Defendant cannot be
expected to sift through hundreds of files belonging to employees who were not similarly
situated to Plaintiff in an effort to identify all complaints of discrimination. Therefore, the
Court will limit the scope of Plaintiff’s Amended Notice to Premier Team members, in the
manner set forth below.
Defendant also requests that the Court limit the time period set forth in the Amended
Notice. Finding the time frame as defined by Plaintiff reasonable, the Court declines to do
so.
Accordingly,
IT IS ORDERED that Defendant’s Motion for Protective Order (filing 95) is granted,
in part. Plaintiff’s Amended Notice is limited as follows:
Paragraph 1. For the time period of July 1, 2011 through July 1, 2014, the
identity of each current or former Premier Team member who
exhibited any of the following behavior in the workplace which
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resulted in some type of documented disciplinary action:
a.
b.
c.
d.
e.

Negativity;
Disturbing the workplace;
Inappropriate behavior;
Communicated negative comments;
Engaged in negative conduct.

Limited to Defendant’s Greentree and Edgewood locations.
Paragraph 2. For each Premier Team member noted in response to Paragraph
No. 1 above, the non-privileged circumstances and facts
regarding each incident in which the Premier Team member was
involved as well as the name(s) of the supervisor(s) who
participated in each disciplinary meeting as a warning
supervisor or as a witness.
Paragraph 3. For each incident noted in response to Paragraph No. 1 above,
describe any investigations undertaken and disciplinary action
imposed, and identify all current or former employees and/or
persons who participated in such action(s).
Paragraph 4. For each Premier Team member identified in response to
Paragraph 1 above, state the following:
a.

Whether the Premier Team member alleged unlawful disability
discrimination or retaliation in the workplace;

b.

Whether the Premier Team member requested
reasonable accommodation in the workplace.

Plaintiff is prohibited from inquiring into information protected by the attorney-client
privilege and/or work product doctrine.
DATED February 10, 2015.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge
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