Limiting a plaintiff’s pretrial discovery can be the key to defending an employment discrimination lawsuit. This point was aptly demonstrated in a federal appellate court ruling approving a district court’s denial of wide-ranging discovery and its summary judgment dismissal of an employee’s discrimination suit. Kuttner v. Zaruba, No. 14-3812 (7th Cir. Apr. 14, 2016). However, Judge Richard Posner’s dissent illustrates that judges have widely differing views on the scope of pretrial discovery in discrimination lawsuits.
The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.
Under many of the most-litigated employee discrimination laws, including Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, plaintiffs can prove their case through either a “direct” or an “indirect” method. Lacking direct proof of discrimination, to successfully plead a case under the indirect method, plaintiffs must show that “comparator” individuals who were not in the relevant “protected class” were treated better than the plaintiff.
Susan Kuttner was a deputy sheriff employed with the DuPage County, Illinois, Sheriff’s Department. In February 2010, Kuttner was discharged after she attempted to collect a loan on behalf of her boyfriend while wearing her sheriff’s uniform, in violation of departmental rules.
Thereafter, Kuttner filed an Equal Employment Opportunity Commission Charge and a subsequent lawsuit against Sheriff John Zaruba, alleging discrimination based on her sex. Kuttner’s attorney requested the personnel files of 30 of Kuttner’s coworkers, using an overbroad understanding of “similarly situated” employees, and claimed 25 incidents of comparable misconduct by Kuttner’s male coworkers dating back to her hiring date in 1998. According to Judge Posner’s dissent, the alleged misconduct involved co-deputies who illegally used drugs and engaged in sexual misconduct, one who dressed his girlfriend in his uniform, and one who broke into his girlfriend’s house while in uniform and vandalized her property.
The judge found the plaintiff’s attorney’s discovery requests unduly burdensome and restricted discovery to information post-January 1, 2006, eliminating from consideration 21 of the 25 allegedly comparable incidents. Apparently also overreaching was the plaintiff’s attorney’s request for the personnel file of the Sheriff’s wife.
The judge evaluated the four incidents of alleged misconduct for the period beginning January 1, 2006, and found them not comparable to the plaintiff’s misconduct. The judge also restricted the information Kuttner’s attorney could elicit during a deposition of a key defense witness to misconduct of which the witness had personal knowledge.
In the end, Kuttner failed to adduce evidence of sex discrimination, so the judge entered summary judgment for the sheriff. Following the disposition of all of Kuttner’s claims, Kuttner appealed the District Court’s discovery limitations.
A divided Seventh Circuit found the discovery limitations imposed by the lower court were reasonable.
The Court, in a decision authored by Judge Diane Sykes, held that a judge may restrict discovery to focus on information reasonably calculated to capture relevant evidence, and that recency is a form of relevance. Furthermore, limiting deposition questions to non-hearsay information was a reasonable response to Kuttner’s counsel’s abusive behavior, the Court said.
Judge Posner’s dissent focused on the apparent factual relevancy of the pre-2006 evidence sought by Kuttner, and the arbitrariness of using January 1, 2006, as a hard discovery cutoff. In particular, Judge Posner noted that there was no indication that evidence post-January 1, 2006, was more probative than the earlier evidence sought by Kuttner, as the Sheriff’s Department had not changed its disciplinary standards, procedures, rules, or supervisors, or otherwise “cleaned up its act.” Judge Posner also noted that limiting discovery as a response to Kuttner’s attorney’s abusive actions, rather than chastising or fining the attorney, punished Kuttner for her attorney’s bad behavior.
It is unclear to what extent the holding in Kuttner is restricted to the unique facts of the case, including Kuttner’s attorney’s requesting information related to Sheriff Zaruba’s wife. The most important lesson from Kuttner may be that although judges will disagree over what constitutes reasonable discovery requests and relevant evidence, they will step in to limit the scope of discovery when they feel an attorney is engaging in abusive tactics, such as a fishing expedition for comparators.
In light of the variability in how judges perceive discovery requests, employers who are considering disciplining or terminating employees for misconduct should continue to evaluate those decisions while keeping in mind the organization’s treatment of other employees who engaged in similar or more severe misconduct.