Quirky Question # 157

An employee recently filed a Charge of Sex Discrimination against our company, with both the EEOC and the parallel state agency. Her lawyers want to depose our company’s CEO. This seems to be little more than a tactical ploy to force our company to expend undue time and resources on this dispute. We have more than 10,000 employees. Will our CEO have to sit for depositions any time a disgruntled employee sues our firm?

Roy’s Analysis

Your question is essentially an inquiry about the appropriate scope of discovery, here focusing upon whether an employment discrimination plaintiff may depose your company’s Chief Executive Officer. As you likely know, courts have wide latitude when resolving discovery issues. Moreover, these discovery disputes turn upon a careful examination of all of the relevant factual circumstances. In short, one size does not fit all.

With that general admonition in mind, however, there are a number of standard variables that should assist you to analyze whether your CEO is likely to have to provide deposition testimony in any given case.

First, was your CEO directly involved in the adverse employment decision your employee is challenging? For example, in a discharge case, did he/she make the termination decision? In a failure to promote case, did he/she make the decision not to promote the affected employee, or did he/she support the promotion of an alternative candidate? Simply put, you need to examine whether your CEO was directly involved in whatever decision your employee complains was discriminatory. As you likely have deduced, the more directly your CEO was involved, the greater the likelihood that he/she will have to participate in the discovery process, including participating in a deposition.

Second, even if your CEO was not directly involved in the decision-making in question, was he/she indirectly involved? Did your CEO influence the first line supervisors with respect to the decision they made? Did the actual decision-makers consult or confer with the CEO? Did the CEO need to sign off on or approve the discharge in some other way? As these inquiries reflect, the greater the involvement of your CEO, even indirectly, the greater the likelihood that he/she will have to participate in the discovery process. The more tenuous or remote the involvement, the lesser the likelihood of your CEO’s mandatory participation.

Third, even if your CEO was not directly involved in the adverse decision affecting the employee in question, was he/she involved in other aspects of that employee’s employment with your company? For example, was the CEO involved in the hiring process? Was the CEO involved in promotion decisions, either for the employee who has filed the Charge or for those against whom the litigant was competing for the promotions? As these questions are intended to illustrate, the legitimacy of deposing the CEO may turn on variables other than his/her direct (or indirect) involvement in the ultimate decision that precipitated the litigation. Did your CEO have some involvement in the complaining employee’s career in the years preceding the EEOC Charge? If yes, the likelihood of a deposition increases.

Fourth, the last point explored whether the CEO had some involvement in the employee’s “career” prior to the adverse actions that resulted in the litigation. Note, too, that the CEO’s involvement may have been episodic. For example, did he/she regularly attend meetings at which the employee presented? Did he/she travel with the employee? Did the CEO periodically observe the employee interact with key customers? These subjects too would be legitimate areas for inquiry, particularly if the CEO expressed compliments to the employee regarding her performance in any of these settings that would appear to be inconsistent with the company’s ultimate adverse action toward the employee.

Fifth, did your CEO have any involvement in any aspect of your aggrieved employee’s performance evaluations, whether formal or informal? No doubt you understand the implications of this issue.

Sixth, another issue that may arise that has implications for whether your CEO will need to participate in a deposition is whether there are company policies implicated by the complaining employee’s Charge of Discrimination. If so, and if your CEO was involved in the preparation or implementation of these policies, again that might increase the likelihood that he/she will need to participate in the discovery process, including a deposition.

These are but a few of the practical considerations that could influence a judge or magistrate with regard to this discovery issue. Other variables that might bear upon this issue include:

  • the number of employees you have (you reference the fact that your company employs more than 10,000, a factor that should benefit your position)
  • the number of layers of management between your CEO and the complaining employee
  • the number of locations your company has
  • whether your CEO and the complaining employee work at the same facility (or, for that matter, in the same country or same state)
  • the frequency of interaction between the CEO and the Charging Party
  • whether there are other individuals in the management chain who could provide the same input and feedback regarding the complaining employee as the CEO
  • whether others in management brought concerns about the employee in question to the CEO.

Keep in mind that if you want to make the argument that your CEO truly is too busy to participate in the discovery process, you will have to offer more than unsupported generalities to advance that position. You will have to demonstrate specifically how your CEO’s participation in a deposition (likely to be limited to seven hours of testimony) will constitute a hardship to your company.

One relatively recent case that illustrates some of the principles described above is the 2009 decision from the Sixth Circuit, Conti v. American Axle and Manufacturing, Inc., No. 08-1301 (6th Cir. May 22, 2009). In that case, a District Court granted summary judgment to the defendant company on the plaintiff’s employment discrimination and retaliation claims and an Equal Pay Act claim. Conti contended that she was a victim of sex discrimination and that she was retaliated against because she offered deposition testimony critical of the company in another female employee’s lawsuit. Conti claimed that the company’s discriminatory practices were a reflection of the discriminatory attitudes of the Company’s CEO.

Conti sought to depose American Axle’s CEO. Due to a variety of delays and procedural problems (including the resignation of plaintiff’s counsel from her case), that deposition was not completed prior to the close of discovery. Ultimately, the District Court did not allow that deposition to take place, despite the fact that it had been noticed in a timely manner. This issue, as well as the District Court’s grant of summary judgment, were appealed to the Sixth Circuit.

Although the appellate court readily acknowledged that the scope of discovery is within the broad discretion of the trial court, and that the standard of review is abuse of discretion resulting in substantial prejudice, the Sixth Circuit pointed out that the scope of discovery is “traditionally quite broad” and that “the limits set forth in Rule 26 must be ‘construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that bear on, any issue that is or may be in the case.’” Id. (internal citations omitted).

In support of her effort to depose the defendant’s CEO, Conti pointed out that: a) the CEO hired her; b) the CEO interacted with her regularly; c) the CEO likely was aware of the fact that she testified against the company in another employee’s lawsuit; d) the CEO was aware of or participated in the decision to demote her; and e) the CEO had written materials that Conti felt evinced his gender-biased attitudes and that other managers in the company had adopted these attitudes. The Sixth Circuit pointed out that while these (and other) allegations might not be sufficient to prove Conti’s claims, they certainly were sufficient “to support further discovery.” The appellate court also attached significance to the fact that the CEO had been described as a hands-on executive, who, at least according to one article, “[ran] his empire like a front-line general, relying on a mixture of fear and respect.” The court expressed considerable skepticism regarding the positions advanced by the defendant that the CEO was detached and aloof and not involved in decisions affecting his managerial team.

Like your company, American Axel had more than 10,000 employees and operated in nine different countries. But Conti and the CEO both worked at the company’s corporate headquarters and there was only one layer of management between Conti and the CEO. Based on these factors and others, the Sixth Circuit found that the lower court’s decision precluding Conti from deposing the defendant’s CEO constituted an “abuse of discretion”. Because of that fact, the summary judgment decision was reversed, and the decision disallowing the CEO’s deposition also was reversed.

As the analysis above suggests and as the Conti case illustrates, these kinds of discovery issues are very fact intensive. Discovery standards are quite broad and the tests for relevancy are likewise liberal. All of that having been said, your CEO should not have to participate in depositions in every suit brought against your company. A plaintiff will have to demonstrate some reasonable nexus between the allegations asserted by the plaintiff and the need for your CEO’s deposition. A subject for another day is how your CEO can give an effective deposition if he/she is compelled to participate in the discovery process.