In Jones v. Johnson, No. 18-2252 (January 9, 2020), the Sixth Circuit addressed whether a party was entitled to information about allegedly comparable employees in a failure to promote case. The lawsuit was filed by a Department of Homeland Security employee, alleging that her employer discriminated against her on the basis of gender by failing to promote her. The plaintiff alleged that her supervisor passed her over for promotions on two separate occasions. On the first occasion the supervisor recommended four male employees and one female employee for promotion, and on the second occasion, one female and one male employee.
The employer moved for summary judgment and the plaintiff requested that the court allow her to conduct discovery. The district court permitted the plaintiff to conduct discovery, but precluded inquiry into comparator information, such as the disciplinary records and personnel files of male comparators. Eventually, the district court granted the employer’s motion for summary judgment, finding that the plaintiff had failed to establish that the employer’s reasons for not promoting her were a mere pretext for gender discrimination. The Sixth Circuit ultimately reversed the district court’s decision in favor of the employee on the grounds that the district court had improperly limited the scope of discovery.
This decision provides important insight for employers as to what could potentially be discoverable information in a failure-to-promote case. When addressing discovery disputes, courts consider the standard set out in Civil Rule 26(b)(1) of the “relevant and proportional needs of the case.” While the determination of what is relevant and proportional is made on a case by case basis, it usually includes: (1) documents reviewed and relied on by a decision-maker, such as comparator performance evaluations and disciplinary records, (2) deposition testimony of decision-makers and those who provided information to the decision maker during the selection process, and (3) the employer’s policies and procedures related to promotions.
This case also highlights the importance of the need for consistency in workplace decisions, as an employer’s decision today can be used against it in the future.
The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP routinely advise public and private employers on Title VII issues and defend employers in discrimination lawsuits. If you have any questions about this case or any other matter, please contact us at info@fisheldowney.com or call 614.221.1216.