In re: Rodney M. Samuelson

Filing 11

ORDER granting 1 Motion Petitioner's Request to Take Pre-Litigation Deposition. Signed by US Magistrate Judge Veronica L. Duffy on 11/18/2022. (AW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
RODNEY M. SAMUELSON,

5:22-MC-00025-KES
ORDER GRANTING PETITIONER’S

Petitioner.

REQUEST TO TAKE PRE-LITIGATION
DEPOSITION

INTRODUCTION
This matter is before the court on the petition of Rodney M. Samuelson
seeking to depose Cleve Trimble, a resident of South Dakota, prior to a lawsuit
being filed pursuant to Fed. R. Civ. P. 27. See Docket No. 1. Monument
Health, Inc. (“Monument”), an entity incorporated in South Dakota and having
its principal place of business here, opposes the request. Docket No. 3.
Monument is Dr. Samuelson’s prior employer. Docket No. 3 at p. 1. The
district court, the Honorable Karen E. Schreier, referred the matter to this
magistrate judge for determination pursuant to 28 U.S.C. § 636(b)(1)(A).
Docket No. 4.
FACTS
On September 21, 2021, Dr. Samuelson filed a charge of discrimination
against Monument alleging he was discriminated against in his employment in
violation of Title VII of the Civil Rights Act of 1964, the South Dakota Human
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Relations Act of 1972 (“SD Act”), and Title I of the Americans with Disabilities
Act (“ADA”). Docket No. 1 at p. 2; Docket No. 3 at p. 1. This charge of
discrimination was filed with both the federal Equal Employment Opportunity
Commission (“EEOC”) and with the South Dakota Division of Human Rights
(“SDDHR”), which investigates claims of employment discrimination. Docket
No. 3 at p. 1. The charge was amended August 10, 2022, to include a claim of
retaliation. Docket No. 8 at p. 2.
Title VII and the South Dakota Human Relations Act are very broad.
Title VII prohibits discrimination in employment on the basis of race, color,
religion, sex, and national origin. 42 U.S.C. § 2000e-2(a). The South Dakota
Human Relations Act prohibits discrimination in employment on the basis of
race, color, creed, religion, sex, ancestry, disability, or national origin. SDCL
§ 20-13-10. Although presumably both parties are familiar with
Dr. Samuelson’s charge and amended charge, neither party has clarified what,
exactly, his discrimination claims are other than the ADA, which by its very
nature implicates discrimination on the basis of disability. Title VII does not
cover disability discrimination, so the court is not aware of what
Dr. Samuelson’s Title VII claim is.
Dr. Samuelson alleges he suffers from a disability, a closed-head injury,
and further asserts he requested accommodation of that disability from
Monument. Docket No. 3 at p. 2. He alleges Monument fired him in retaliation
for requesting accommodation for his disability. Docket No. 8 at p. 2.

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Dr. Cleve Trimble is a retired general surgeon who was hired by
Monument as an external consultant to provide leadership, professional, and
practice management coaching for individual medical care providers,
departments, and teams. Docket No. 3 at p. 1. In this capacity, Dr.
Samuelson and Dr. Trimble met a few times in late 2019 and once early in
2020 as well as an unspecified number of teleconferences in 2020. Id. at p. 2.
Monument alleges these meetings between Dr. Trimble and Dr. Samuelson had
nothing to do with Dr. Samuelson’s alleged disability. Id. Monument asserts it
had no idea Dr. Samuelson suffered from a disability until it received a
December 29, 2020, letter from Dr. Samuelson’s attorney advising of the same.
Id. Monument terminated Dr. Samuelson’s employment on August 4, 2021.
Id. at p. 3.
Dr. Samuelson asserts that he is “statutorily prohibited from filing his
Title VII and ADA complaint” in court at this time. Docket No. 1 at p. 3, ¶ 12.
He also asserts that Dr. Trimble is in his 80s and “is unhealthy.” Id. at p. 4.
He seeks the court’s permission to take Dr. Trimble’s deposition prior to his
complaint being filed in federal court so as to preserve his testimony “regarding
Dr. Samuelson’s opinions during review meetings, his temperament, his
capabilities, how his disability presents in the workplace, and the reasonable
accommodations Dr. Trimble recommended Monument Health to utilize to
accommodate” him. Id. at pp. 2-3 ¶ 11.
Monument disputes all of these allegations. It asserts Dr. Samuelson
could file suit immediately if he so chose by requesting a right-to-sue letter. It
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asserts Dr. Trimble never observed Dr. Samuelson in the performance of his
duties and so cannot testify to such. It further asserts that Dr. Samuelson has
not shown Dr. Trimble’s testimony is in danger of being lost as he is still
performing duties as a consultant and expert.
DISCUSSION
A.

Rule 27
Rule 27 of the Federal Rules of Civil Procedure provides in pertinent part:
(1) Petition. A person who wants to perpetuate testimony about
any matter cognizable in a United States court may file a verified
petition in the district court for the district where any expected
adverse party resides. The petition must ask for an order
authorizing the petitioner to depose the named persons in order to
perpetuate their testimony. The petition must . . . show:
(A) that the petitioner expects to be a party to an action
cognizable in a United States court but cannot presently
bring it or cause it to be brought;
(B) the subject matter of the expected action and the
petitioner’s interest;
(C) the facts that the petitioner wants to establish by the
proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom the
petitioner expects to be adverse parties and their addresses,
so far as known; and
(E) the name, address, and expected substance of the
testimony of each deponent.

Fed. R. Civ. P. 27(a)(1). The court may grant the petition if “satisfied that
perpetuating the testimony may prevent a failure or delay of justice.” Fed. R.
Civ. P. 27(a)(3).

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First, the court notes that Dr. Samuelson’s employment discrimination
claims contained in his charge of discrimination are matters “cognizable in a
United States court” as they are within the court’s grant of federal subject
matter jurisdiction. 28 U.S.C. § 1331. The state-law discrimination claims
could also be brought in a federal court complaint along with the federal law
claims under the court’s supplemental jurisdiction. 28 U.S.C. § 1367.
All but one of Monument’s objections can be easily dealt with.
Monument’s assertion that Dr. Trimble does not have knowledge of
Dr. Samuelson’s disability is a contested issue. Dr. Samuelson asserts that
one of the areas he wishes to depose Dr. Trimble regarding is the subject of
what reasonable accommodation(s) Dr. Trimble told Monument it should
implement in order to address Dr. Samuelson’s disability. Docket No. 1 at p. 3,
¶ 11. This description of the subject matter of the deposition is relevant to
Dr. Samuelson’s claims and sufficiently specific, despite Monument’s
protestations to the contrary. Echevarria-Soto v. Edwards Lifesciences Tech.
Sarl, LLC, 303 F.R.D. 175, 177 (2014) (reaffirming the granting of a Rule 27
petition where petitioner alleged deponent was a material witness to petitioner’s
age discrimination claim despite employer’s assertion the deponent’s testimony
was not necessary). The information is relevant because it may show that
there were reasonable accommodations that Monument could have made and,
depending on when Dr. Trimble recommended accommodations, it may show
Monument did in fact have knowledge of Dr. Samuelson’s disability prior to
December 2020.
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Also, Dr. Samuelson is at an advanced age, in his 80s, which Monument
does not dispute. Although none of us know “the day or the hour” when our
lives will end, as age advances it becomes statistically more likely to happen
sooner rather than later. Regardless of whether Dr. Trimble has a known
illness or not, his testimony is in danger of being lost simply through the
passage of time. This is true even if Dr. Trimble continues to be sharp
mentally and sound physically for the present. Many courts have granted Rule
27 petitions based on the age alone of the deponent for deponents younger
than Dr. Trimble. See Penn Mut. Life Inc. Co. v. United States, 68 F.3d 1371,
1375 (D.C. Cir. 1995) (noting that deponents at the age of 80 “presents a
significant risk that he will be unavailable to testify” later) (citing Texaco, Inc. v.
Borda, 383 F.2d 607, 609 (3d Cir. 1967) (granting a Rule 27 petition for a 71year-old deponent); De Wagenknecht v. Stinnes, 250 F.2d 414, 417 (D.C. Cir.
1957) (permitting pre-suit deposition of a 74-year-old witness); In re Boland, 79
F.R.D. 665, 667 (D.D.C. 1978) (noting that age of a deponent is relevant to Rule
27 petition but denying petition on other grounds)).
The real crux of the issue raised by Monument is whether Dr. Samuelson
could presently file his complaint in a court of law. Rule 27 requires
Dr. Samuelson to show that he “cannot presently bring [an action in court] or
cause it to be brought.” Fed. R. Civ. P. 27(a)(1)(A). Monument asserts that,
because Dr. Samuelson’s charge of discrimination has been pending for more
than 180 days, he has the right to immediately request a right-to-sue letter

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from the EEOC and, upon receipt of the same, to file his complaint. Docket No.
3 at p. 4 (citing 29 C.F.R. § 1601.28(a)(1)).
Dr. Samuelson argues that merely because he might be permitted to
prematurely withdraw his charge of discrimination in favor of filing suit in a
court, the laws do not require him to do so. Docket No. 8 at p. 1.
Furthermore, he asserts that under South Dakota state law, he is not allowed
to withdraw his charge prematurely. Id. at p. 2. But Dr. Samuelson has it
backward: the burden is not on Monument to demonstrate that he must
remove his action from the administrative process. Rather, Rule 27 places the
burden on Dr. Samuelson to show that he “cannot” now bring suit.
B.

Is Dr. Samuelson Currently Unable to Bring Suit?
Title VII (and the ADA) contemplate that remedying employment

discrimination would be a cooperative effort between state and federal
governments. New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63-64
(1980) (citing 110 Cong. Rec. 7205 (1964)). Before filing suit in court, both
Title VII and ADA claimants must exhaust their administrative remedies. See
42 U.S.C. §§ 2000e-5(b) & (c), and 12117(a); Williams v. Little Rock Mun. Water
Works, 21 F.3d 218, 222 (8th Cir. 1994). This requires the filing of a charge of
discrimination. Id.; Carey, 447 U.S. at 64. The claimant can file either with
the EEOC or with the South Dakota Division of Human Rights. Id. If the state
is a “certified 706 state,” and the claimant files first with the EEOC, there will
be an automatic deferral from the EEOC to the state human rights agency. 42
U.S.C. § 2000e-5(c) & (d); Carey, 447 U.S. at 64.
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South Dakota is a 706 certified state as it concerns sex, race, and
disability discrimination, but not age discrimination. (A “certified 706” state
must have laws prohibiting the same unlawful employment practice alleged in
the charge of discrimination and prohibited by federal law, and also a state
agency or local authority authorized to grant or seek relief from such practice
or to institute criminal proceedings with respect thereto. See 42 U.S.C.
§ 2000e-5(c)). So, whether a South Dakota claimant files with the EEOC or
with the South Dakota Division of Human Rights, the Division will investigate.
When a charge is filed with the EEOC, prior to exhaustion of state or
local remedies, the EEOC holds the complaint in “suspended animation.”
Carey, 447 U.S. at 64. Upon termination of the state proceedings or expiration
of the 60-day deferral period 1, whichever comes first, the EEOC automatically
assumes concurrent jurisdiction of the complaint. Id. After the passage of 180
days, the EEOC is required to issue a right-to-sue letter upon request by the
aggrieved person, regardless of the posture of any state proceedings. Carey,
447 U.S. at 65, 65 n.5; 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28.
However, Kremer also makes clear that nothing in Title VII requires a
claimant to pursue state court review of the agency’s determination of no
probable cause. Kremer, 456 U.S. at 469, 470 n.7. See also Jones v. American
State Bank, 857 F.2d 494, 496 n.7 (8th Cir. 1988) (citing Kremer for the

1 The

EEOC must wait 60 days after a charge of discrimination is filed to allow
the state agency to investigate and attempt to remedy the allegedly unlawful
employment practice before the EEOC takes any action. 42 U.S.C.
§ 2000e-5(d).
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proposition that “no provision of Title VII requires claimants to pursue in state
court an unfavorable state administrative action.”). If the claimant elects not to
pursue state court review of the agency’s decision, and her charge of
discrimination had been pending for 180 days or more, she is free to request a
right-to-sue letter from the EEOC and, once she has that letter in hand, to file
suit in federal court and obtain de novo consideration of her claim. Kremer,
456 U.S. at 469, 470 n.7.
There is one wrinkle to this equation. If the state agency acts in its
judicial capacity, rather than just the investigative capacity (the EEOC acts in
an investigatory capacity only, it cannot act judicially), and the claimant
participates in a judicial action before the agency, the court applies the
doctrine of administrative res judicata and will not entertain the Title VII
action. See Buckhalter v. Pepsi-Cola General Bottlers, Inc., 768 F.2d 842, 854
(7th Cir. 1985). An agency acts in its judicial or “adjudicatory” capacity when
it holds a trial-type hearing, makes findings, applies the law, takes testimony,
affords both sides the opportunity to rebut the other’s evidence, etc. Id.
at 850.
There are two stages to the work of the South Dakota Division of Human
Rights. First, a complainant initiates the process by filing a charge of
discrimination, either with the EEOC, the Division, or both. SDCL § 20-13-29.
The Division then investigates the charges. SDCL §§ 20-13-28, 20-13-32.

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The parties can submit information to the Division, but there is no trial, no
opportunity for rebuttal, no cross-examination, and no right to conduct
discovery. At the end of the investigatory phase, the Division issues a
determination of probable cause. SDCL § 20-13-28.1.
If the Division determines that there is no probable cause, this
constitutes final agency action. Id. At that point, the claimant has two
choices. The claimant can pursue state circuit court review of the agency’s
decision under the South Dakota Administrative Procedures Act, SDCL ch. 126, or the claimant can request a right-to-sue letter from the EEOC. See SDCL
§ 20-13-28.1; Jansen v. Lemmon Federal Credit Union, 562 N.W.2d 122, 12324 (S.D. 1997) (decision of no probable cause mandates accepting final agency
action or appealing to circuit court under the APA); Kremer, 456 U.S. 461, 469,
470 n.7.
If the claimant elects to pursue state circuit court review, the action
proceeds as a standard administrative appeal where the standard of review is
arbitrary and capricious. See SDCL ch. 1-26; SDCL § 1-26-36. Once the
claimant elects to pursue the state court appellate review, they are stuck with
the result. The Supreme Court held in Kremer, supra, that 28 U.S.C. § 1738,
which requires federal courts to give full faith and credit to state court
judgments, precludes de novo review of a Title VII claim in federal court once a
state court judgment has been entered affirming the agency’s finding of no
probable cause. See Kremer, 456 U.S. at 476, 485.
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If, after its investigation, the South Dakota Division of Human Rights
issues a determination of probable cause, the Division will attempt to
conciliate. See SDCL § 20-13-32. If conciliation fails, the Division will issue a
notice to the respondent/employer that it should file a formal answer to the
charge of discrimination. See SDCL § 20-13-34. Once the Division’s notice to
answer goes out to the respondent, both parties have twenty days within which
to make an election to remove the action from the Division and proceed in
court. See SDCL § 20-13-35.1.
The South Dakota statutory scheme seems to contemplate that the only
place a party may remove an action following the Division’s determination of
probable cause is South Dakota state circuit court. See SDCL § 20-13-35
(stating that the notice to respondent to answer the charge shall also inform
the parties of their right to remove the matter to circuit court); and § 20-1335.1 (telling the court what the scope of its remedies are once a matter is
removed from the agency). However, this is contrary to the holding in Carey
that a right to sue letter can be requested from the EEOC at any time after the
expiration of 180 days from the date the charge was filed, regardless of the
procedural posture of the state administrative proceedings. See Carey, 447
U.S. at 65, n.5, ; see also 42 U.S.C. § 2000e-5(f)(1) (notice of right to sue can
issue after expiration of 180 days after filing of charge); Daines v. City of
Mankato, 754 F. Supp. 681, 684 ¶¶ 4-6, 695 ¶ 3 (D. Minn. 1990)

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(holding that a plaintiff who had obtained a state agency determination of
probable cause and then requested and received a right-to-sue letter from the
EEOC had exhausted her administrative remedies).
Once a respondent or charging party files notice of their election,
regardless of who made the election, the charging party must file a complaint.
If the charging party elects to sue in state court, no further action is required
other than the filing of a state court complaint. A charging party has one year
following the filing of the election notice to get their complaint filed and served.
See SDCL § 20-13-35.1.
If the charging party chooses to file in federal court after filing the
election notice, she must complete the additional step of obtaining a right-tosue letter from the EEOC before the complaint is filed in federal court.
Under the federal and state schemes, administrative exhaustion is
different. Under the federal scheme, if the charge of discrimination has been
pending for 180 days or more, a claimant can request a right-to-sue letter and
file their complaint asserting their federal discrimination claims in federal court
with no adverse consequences. In South Dakota, a claimant must wait for the
Division of Human Rights to issue a finding of probable cause or a finding of no
probable cause before resorting to filing a complaint in court.
SDCL § 20-13-35.1.
Here, Dr. Samuelson cannot file his complaint in any court yet if he
wishes to include all his claims in one complaint. On the federal side, although
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his original charge of discrimination has been pending for 180 days, his
amended charge has not been pending for 180 days. If he sought a right-tosue letter at this juncture, he would be entitled to a letter enabling him to sue
only on the claims contained in his original charge. He must wait 180 days
from the filing of his amended charge of discrimination to bring his retaliation
claim in federal court. Hall v. FlightSafety Internat’l., Inc., 106 F. Supp. 2d
1171, 1181-82 (D. Kan. 2000). His 180 days on the amended charge will not
expire until approximately February 10, 2023.
As to his state claims, Dr. Samuelson must await the Division’s
determination of probable cause and issuance of a notice to Monument to file
an answer before removing his claims from the administrative process.
Alternatively, he must await the Division’s determination of no probable cause
and then request a right-to-sue letter from the EEOC. The Division has not yet
issued a determination of probable cause. Docket No. 10. At present, it would
be premature for Dr. Samuelson to withdraw his charge of discrimination from
the administrative process and file suit in any court. He is at this juncture,
unable to bring a lawsuit for all the claims that are currently pending
administratively. As such, the court holds he has satisfied Rule 27’s
requirement of showing his is presently unable to bring suit. See Penn Mut.
Life Ins. Co. v. United States, 68 F.3d 1371, 1374-75 (D.C. Cir. 1995) (requiring
petitioners to complete the administrative process before granting permission
for a deposition would render Rule 27 a nullity because, at the conclusion of

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administrative proceedings, the petitioner would be able to file suit and avail
themselves of normal discovery procedures); cf. Application of Carson, 22
F.R.D. 64, 65 (E.D. Ill. 1957) (petition denied where the ill health and advanced
age of the deponent was established, but petitioner failed to show he was
unable to bring suit presently).
This court is “satisfied that perpetuating the testimony [of Dr. Trimble]
may prevent a failure or delay of justice.” Fed. R. Civ. P. 27(a)(3). Accordingly,
Dr. Samuelson’s petition will be granted.
CONCLUSION
Based on the foregoing facts, law and analysis, it is hereby
ORDERED that Dr. Samuelson’s petition to take the deposition of
Dr. Cleve Trimble [Docket No. 1] is granted. The deposition shall take place at
a time and location mutually agreeable to Dr. Samuelson, Monument and
Dr. Trimble. Alternatively, if an agreement cannot be reached, Dr. Samuelson
may issue a subpoena to Dr. Trimble with notice to Monument of the date, time
and location of the deposition. It is further
ORDERED that the deposition of Dr. Trimble shall be limited to the
following subject matter: Dr. Trimble’s knowledge of “Dr. Samuelson’s opinions
during review meetings, his temperament, his capabilities, how his disability
presents in the workplace, and the reasonable accommodations Dr. Trimble
recommended Monument Health to utilize to accommodate” Dr. Samuelson.
See Docket No. 1 at pp. 2-3, ¶ 11. It is further

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ORDERED that the deposition of Dr. Trimble shall not exceed eight
hours and the form, method and procedure used for the deposition shall be
governed by Fed. R. Civ. P. 30.
DATED this 18th day of November, 2022.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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