Shelby v. City of Omaha et al

Filing 83

ORDER - Tracy Shelby's Motion to Compel (Filing No. 67 ) is granted. The defendants shall have until November 25, 2016, to supplement their discovery responses in accordance with this order. Ordered by Magistrate Judge Thomas D. Thalken. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TRACI SHELBY,
Plaintiff,

8:14CV379

vs.
ORDER
CITY OF OMAHA, and
BERNARD L. POST and
EDWARD B. MCNULTY, in there official
and individual capacities,
Defendants.
This matter is before the court on Tracy Shelby’s (Shelby) Motion to Compel
(Filing No. 67). Shelby seeks production of documents comprising disciplinary
investigations about two individuals who were involved in the alleged decision to
terminate Shelby from her employment. Shelby filed a brief (Filing No. 68) and an index
of evidence (Filing No. 69) in support of the motion. The defendants filed a brief (Filing
No. 73) opposing production.

Shelby filed a brief (Filing No. 74) and an index of

evidence (Filing No. 75) in reply.

BACKGROUND
Shelby worked part-time conduct maintenance for the City of Omaha Public
Works Department from April 30, 2012, until May 24, 2013, when she alleges she was
constructively discharged.

See Filing No. 46 - Amended Complaint ¶ 10.

Shelby

alleges she immediately suffered a pattern of sexual harassment, discrimination, and
retailiation, in violation of 42 U.S.C. §1983, Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., Title I of the Civil Rights Act of 1991, and the
Nebraska Fair Employment Practices Act Neb. Rev. Stat. §48-1101, et seq. Id. at 1.
Specifically, Shelby was subjected to a hostile work environment based on her gender,
including frequent demeaning comments and comments about her breasts and one
exposure to a pornographic movie clip. Id. at 3-4. Additionally, Shelby alleges the
defendants delayed her raise and gave her unfavorable job assignments.

Id.

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supervisor, Bernard L. Post (Post), provided copies of the civil service exam to men in

the traffic division.

Id. at 4.

After previous complaints went unaddressed, Shelby

complained about discriminatory conduct to Mike Paukert (Paukert), on April 11, 2013.
Id. at 6-7. Shelby alleges the harassment continued compelling Shelby to resign her
position. Id. at 7. The defendants deny Shelby’s allegations and deny liability. See
Filing No. 47 - Answer. On July 29, 2016, the defendants filed a motion for summary
judgment. See Filing No. 41. The motion is fully briefed and awaiting a court ruling.
Trial of this case is scheduled for December 12, 2016, with the final pretrial
conference on November 18, 2016. See Filing No. 24. The deposition and discovery
deadline was May 31, 2016, and discovery motions were due by February 1, 2016, for
matters then ripe for determination. Id.
The parties engaged in the exchange of discovery throughout 2015 and into
2016. Shelby served discovery requests on the defendants in September 2015 and
April 2016, and the defendants produced documents, mostly without objection. See
Filing No. 67 - Motion p. 11; see Filing No. 27 - Notice of Service.

However, Shelby

learned, during a July 2016 Rule 30(b)(6) deposition, two supervisors, Post and
Paukert, were disciplined for conduct they disclosed in previous depositions taken as
part of this lawsuit. See Filing No. 67 - Motion p. 2. Subsequently, Shelby requested
additional discovery be produced.

Id.

On August 5, 2016, the defendants

supplemented their responses to previous requests for production of documents, but
objected to disclosure of the City of Omaha’s Labor Relations Director’s investigation
files. See Filing No. 49 - Notice of Service; Filing No. 73 - Response p. 3.2 The parties
were unable to resolve their dispute about whether the investigation files are
discoverable under the circumstances surrounding this lawsuit.
Shelby filed the instant motion to compel on October 20, 2016. See Filing No.
67. Shelby argues the investigation files are responsive to her requests for Post’s and
Paukert’s personnel files, which requests included “any files . . . maintained . . . within
the organization.”

Id. at 3-4.

Shelby also relies on her requests for any witness

statements pertaining to the subject matter of this lawsuit or mentioning Shelby. Id. at
1

The court relies on the parties’ assertions as they failed to file certificates of service in accordance with
NECivR 34.1(b).
2
The court cites to the page numbers in the header which are assigned by the court’s filing system, rather
than those used by the defendant on the bottom of the pages.
2

2-3. Shelby contends the requested files are relevant to the underlying investigation
regarding Shelby’s pre-termination complaints. Id. at 5. Specifically, although Post’s
investigation was not due to his conduct toward Shelby, the investigation surrounded
Post’s conduct during the City of Omaha’s investigation into Shelby’s complaints,
including whether Post denied stealing a copy of the civil service exam and distributing
it to male employees. Id. Shelby contends, admissibility aside, Post being accused of
lying, his termination and later rehiring are all “certainly” relevant to this lawsuit. Id.
Shelby denies the events could be considered “subsequent remedial measures” or too
attenuated to Shelby’s employment. Id. Similar to Post’s investigation, the City of
Omaha investigated Paukert for his ignorance of the discrimination polices and
procedures, rather than his direct conduct toward Shelby.

Id. at 6.

Shelby notes

Paukert’s statements during the investigation were different form his deposition
testimony. Id. Shelby seeks the investigatory materials to determine their full relevance
and admissibility in this lawsuit.

Id.

Shelby argues the investigatory materials are

relevant to the individual’s motivations and participation in her termination, even though
the investigation post-dated her termination, and are also relevant to the defendants’
response to Shelby’s complaints. See Filing No. 74 - Reply.
The defendants deny the investigatory materials are responsive to Shelby’s
discovery requests and whether they are relevant or admissible for this lawsuit. See
Filing No. 73 - Response p. 3-5. The defendants seek to prevent disclosure of the
investigatory files of Tim Young, the Labor Relations Director. Id. at 3. The defendants
contend these files are not part of the employees’ personnel files for the investigations
conducted in the last year about complaints regarding Post and Paukert.

Id. The

defendants argue the notes, impressions, and investigation of the Labor Relations
Director cannot aid in impeachment or be of any other use to Shelby in this matter. Id.
at 5. The defendants reiterate any disciplinary records are part of the personnel files
and have been produced.

ANALYSIS
“Broad discovery is an important tool for the litigant, and so ‘[r]elevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
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lead to the discovery of admissible evidence.’”

WWP, Inc. v. Wounded Warriors

Family Support, Inc., 628 F.3d 1032, 1039 (8th Cir. 2011) (alteration in original)
(quoting Fed. R. Civ. P. 26(b)(1)).

The federal rules provide for broad, but not

unlimited, discovery:
Parties may obtain discovery regarding 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.
Fed. R. Civ. P. 26(b)(1). Accordingly, relevant information includes “any matter that
bears on, or that reasonably could lead to other matter that could bear on, any issue
that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978); see Fed. R. Civ. P. 26(c)(1). Mere speculation that information might be
useful will not suffice; litigants seeking to compel discovery must describe with a
reasonable degree of specificity the information they hope to obtain and its importance
to their case. See Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir. 1972). Once
the requesting party meets the threshold relevance burden, generally “[a]ll discovery
requests are a burden on the party who must respond thereto. Unless the task of
producing or answering is unusual, undue or extraordinary, the general rule requires the
entity answering or producing the documents to bear that burden.” Continental Ill.
Nat’l Bank & Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 684-85 (D. Kan. 1991)
(citation omitted). The court has authority to limit the scope of discovery. Roberts v.
Shawnee Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003).
Shelby has met her burden of demonstrating the relevance of the discovery
sought.

The requests incorporate the investigation files, which include information

bearing on her claims about her underlying treatment and the process following her
complaints. Shelby has shown the requested information bears on her claims and are
appropriate even when considering the pertinent factors indicative of the proportional
needs of the case. The information’s admissibility at trial is not before the court, nor

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need be resolved at this stage. For these reasons, Shelby’s motion will be granted.
Accordingly,

IT IS ORDERED:
1.

Tracy Shelby’s Motion to Compel (Filing No. 67) is granted.

2.

The defendants shall have until November 25, 2016, to supplement their

discovery responses in accordance with this order.
Dated this 16th day of November, 2016.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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