Kaiser v. Gallup, Inc.

Filing 111

MEMORANDUM AND ORDER that Plaintiff Susan Kaiser's Statement of Objections to Magistrate Judge's Order and Certificate of Service 107 is denied. The stay 108 of Defendant's Motion for Summary Judgment is lifted. Plaintiff Susan Kaiser will submit her brief and any evidence in response to Defendant's Motion for Summary Judgment 102 on or before March 23, 2015. Ordered by Chief Judge Laurie Smith Camp. (JSF)

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

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CASE NO. 8:13CV218

MEMORANDUM
AND ORDER

This matter is before the Court on the Statement of Objections (Filing No. 107)
submitted by Plaintiff Susan Kaiser (“Kaiser”), in which she objects to Magistrate Judge
F.A. Gossett’s Order of February 10, 2015 (Filing No. 105), granting in part a Motion for
Protective Order (Filing No. 95) submitted by Defendant Gallup, Inc. (“Gallup”).
In essence, Judge Gossett limited the scope of Kaiser’s Third Amended Notice of
Rule 30(b)(6) Deposition (Filing No. 94) to inquiries about Gallup employees who were
similarly situated to Kaiser in all relevant respects, i.e., members of Gallup’s “Premier
Team,” a high-performing interviewing team of which Kaiser was a member. Judge
Gossett’s Order was consistent with his earlier ruling (Filing No. 86, at 4-5) on Kaiser’s
Motion to Compel (Filing No. 53), limiting Kaiser to discovery that is likely to yield relevant
information and is not unduly burdensome to Gallup.
Kaiser argues that her discovery should not be limited to inquiries about Gallup
employees who were similarly situated to her in all relevant respects, even though she
acknowledges the information she seeks may not be admissible in evidence to
demonstrate that Gallup’s proffered reason for her termination was pretext for unlawful
discrimination. She asserts that discovery involving Gallup employees who were not
similarly situated to her in all relevant respects should be permitted because the

information she seeks may be admissible in evidence to support her initial prima facie case
of discrimination. She notes that courts apply a less rigorous test to determine the
relevance of evidence presented in support of a plaintiff’s initial prima facie case than is
applied at the pretext stage of analysis.
On a non-dispositive matter such as this, the Court will modify or set aside any part
of a magistrate judge’s order that is “clearly erroneous or is contrary to law.” Fed. R. Civ.
P. 72(a). The Court has considered Kaiser’s Statement of Objections (Filing No. 107) and
her earlier Brief in Opposition to Defendant’s Motion for Protective Order (Filing No. 100)
as well as the evidence she filed in support of that brief (Filing No. 98), and concludes that
Magistrate Judge Gossett’s Order is neither clearly erroneous nor contrary to law.
Fed. R. Civ. P. 26(b)(2)(C)(iii) requires a court to limit the extent of discovery when
“the burden or expense of the proposed discovery outweighs its likely benefit, considering
. . . the importance of the discovery in resolving the issues.” In the context of employment
practice litigation, discovery must be limited to the practices at issue in the case. See
Sallis v. Univ. of Minn., 408 F.3d 470, 478 (8th Cir. 2005).
Kaiser has presented claims alleging discrimination under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213 (2012) (“ADA”), retaliation stemming from her
assertion of rights under the ADA, and wrongful termination. Unlike the elements of a
prima facie case for an action alleging discrimination under Title VII of the Civil Rights Act
of 19641, the elements of a prima facie case of discrimination or retaliation under the ADA
1

To establish a prima facie case of discrimination under Title VII, a plaintiff must
prove “that she (1) is a member of a protected class; (2) was qualified to perform her
job; (3) suffered an adverse employment action; and (4) was treated differently than
similarly situated employees who were not members of the protected class.” Wilkie v.
2

do not include any showing of treatment different from similarly situated persons outside
the protected class.
“The three elements of [a] prima facie case [under the ADA] are (1) that the plaintiff
has ‘a disability within the meaning of the ADA;’ (2) that he is qualified ‘to perform the
essential functions of the job, with or without reasonable accommodation;’ and (3) that he
suffered ‘an adverse employment action due to a disability.’” Chalfant v. Titan Distribution,
Inc., 475 F.3d 982, 988 (8th Cir. 2007) (quoting Wenzel v. Mo.–Am. Water Co., 404 F.3d
1038, 1040 (8th Cir. 2005).
“To establish a prima facie case of ADA retaliation, [a plaintiff] must show that she
engaged in protected activity based on a reasonable good faith belief that an agent of the
employer was engaging in disability discrimination, and suffered an adverse employment
action causally linked to that protected conduct.” Lenzen v. Workers Comp. Reinsurance
Ass'n, 705 F.3d 816, 821 (8th Cir. 2013).
The factual contentions in Kaiser’s Complaint (Filing No. 1-1), demonstrate that she
and her counsel have evidence to satisfy the elements of her prima facie cases for
discrimination and retaliation under the ADA.2 The Defendant’s pending Motion for

Dep’t of Health and Human Servs., 638 F.3d 944, 954-55 (8th Cir. 2011) (citing Philip v.
Ford Motor Co., 413 F.3d 766, 768 (8th Cir. 2005)). To establish a prima facie case of
retaliation under Title VII, a plaintiff need only show that: “‘(1) she engaged in statutorily
protected conduct; (2) she suffered an adverse employment action; and (3) a causal
connection exists between the two.’” Fiero v. CSG Sys., Inc., 759 F.3d 874, 880 (8th
Cir. 2014) (citation omitted).
2

“By presenting to the court a pleading . . . an attorney . . . certifies that to the
best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances: . . . (3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery . . . .” Fed. R. Civ. P. 11(b)
3

Summary Judgment, and/or the trial in this matter, will likely turn on questions of the
legitimacy of Gallup’s proffered reasons for its actions, and whether Kaiser can
demonstrate that such reasons are pretext for unlawful discrimination or retaliation.
Because Magistrate Gossett’s Order setting certain limits on discovery (Filing No.
105) was neither clearly erroneous nor contrary to law,
IT IS ORDERED:
1.

Plaintiff Susan Kaiser’s Statement of Objections to Magistrate Judge’s Order
and Certificate of Service (Filing No. 107) is denied;

2.

The stay (Filing No. 108) of Defendant’s Motion for Summary Judgment is
lifted; and

3.

Plaintiff Susan Kaiser will submit her brief and any evidence in response to
Defendant’s Motion for Summary Judgment (Filing No. 102) on or before
March 23, 2015.

DATED this 5th day of March, 2015.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

(emphasis added).
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