The opinion of the court was delivered by: P. Michael Mahoney, Magistrate Judge United States District Court
Magistrate Judge Judge Phillip Reinhard
MEMORANDUM OPINION AND ORDER
The parties to this litigation have engaged in a number of disputes regarding the discovery materials that are the subject of Plaintiff's motion to compel. As a summary, Plaintiff's Second Amended Complaint alleges employment discrimination in the form of retaliation and termination on the basis of age, gender, and race. It appears Plaintiff will attempt to engage in the indirect method of proving allegations under the familiar McDonnell Douglas burden shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff's discovery requests essentially seek information that would relate to: (1) his claims of disparate treatment in relation to similarly-situated employees, a required element to establish a prima facie case; and/or (2) the nature of Defendants' potential claims of legitimate, nondiscriminatory reasons for its treatment of Plaintiff, an important part of the McDonnell Douglas analysis.
The court will first address Plaintiff's requests in light of his attempt to identify similarly situated employees. Beginning in June 2009, Plaintiff began requesting personnel and disciplinary files of employees who he believed were similarly situated to Plaintiff. Defendants objected that the requests were vague, overly broad, and created an undue burden. Through numerous communications, motions, and court hearings over the course of nearly sixteen months, the parties have attempted to narrow the scope of the discovery to an appropriate set of potentially similarly situated individuals. At an August 11, 2010 hearing, the court denied Plaintiff's requests for the personnel and disciplinary files of each administrator, principal, and administrative principal within District 205 within the last five years, and instructed that Plaintiff may attempt to narrow the request or obtain further information through an interrogatory. Now before the court is Plaintiff's second motion to compel and to extend discovery.
1. Discussion of Similarly Situated Employees
At the heart of each of these requests is a question as to whether they are relevant and appropriately tailored to discover information relating to similarly situated individuals. The thrust of the arguments before the court at the most recent discovery hearings was similarly focused on how to define similarly situated employees in this case. Therefore, the court will begin with a discussion of similarly situated employees as it relates to Plaintiff's requests.
As an initial matter, the court notes that the standard for evaluating Plaintiff's requests is whether they are reasonably calculated to lead to the discovery of admissible evidence. FED. R.
CIV. P. 26(b). In other words, discovery requests at this stage of litigation need not be perfectly tailored to apply strictly to similarly situated individuals as they will ultimately be defined by a trier of fact. Rather, the request may be tailored to lead Plaintiff to a list of employees or former employees that could result in discovery of similarly situated individuals. In other words, Plaintiff may need to obtain a list of individuals in order to determine whether there are similarly situated individuals, and if so, who they might be. To do otherwise would place the burden of finding similarly situated individuals on the Plaintiff without the benefit of discovery. Determining similarly situated employees requires a comparison between Plaintiff and his co-workers.
Defendants have proposed that "similarly situated employees" are those that "dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them." (Def.'s Resp. to Pl.'s Second Mot. to Compel, Dkt. No. 129, p. 6-7.) If Defendants had their way, they would also have to drive the same car and have the same color eyes. Defendants cite to the "same supervisor" language in an attempt to eliminate all but school principals from the category of potentially similarly situated employees. The court finds Defendants' focus on this language misleading given the context of this case. The Seventh Circuit use of the "same supervisor" standard arose in the context of disciplinary situations where the "supervisor" is the one determining and applying disciplinary decisions. In such cases, the question the court was attempting to isolate was whether the disciplinary decision-maker, when presented with factually similar situations, made determinations based on discriminatory factors.
However, the Seventh Circuit has clarified that Defendants' preferred definition of "similarly situated", when framed as a requirement in "must" terms, is a view that is "too rigid and inflexible." Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff'd ---- v. ----, 553 U.S. 442 (2008). Instead,the court should "look at all relevant factors" to determine if a Plaintiff is "similarly situated with respect to performance, qualifications, and conduct." Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000). This type of determination requires a "flexible, common-sense comparison based on 'substantial similarity' rather than a strict 'oneto-one mapping between employees'" and allows the court to attempt to "isolate the critical independent variable: complaints about discrimination." Argyropoulos v. City of Alton, 539 F.3d 724, 735 (7th Cir. 2008) (citations omitted); see also Humphries, 474 F.3d at 405. The court also notes that Plaintiff's search for similarly situated individuals need not be restricted to the time period of the alleged acts of discrimination. Freeman v. Madison Metropolitan School Dist., 231 F.3d 374 (7th Cir. 2000) (in determining similarly situated individuals, "[t]he focus must remain on whether the evidence is relevant to demonstrate that discrimination played a role in the decision, and that determination is not served by a bright-line temporal restriction"). This type of inquiry varies depending on the type of employer conduct at issue. Id.
Here, the alleged employer conduct at issue was a temporary disciplinary demotion, public disclosures about Plaintiff's qualifications, and the eventual non-renewal of Plaintiff's contract by Defendant Rockford Board of Education. In determining which employees are similarly situated, it matters less who an individual "reports to" on a daily basis, and more who made the decisions regarding discipline and the non-renewal of Plaintiff's contract. See, e.g. Woods v. Von Maur, Inc., 2010 U.S. Dist. LEXIS 88662, * 9-10 (N.D. Ill. Aug. 27, 2010). Defendants have not alleged that the Board of Education and/or acting superintendent cannot, or do not, have control over the disciplinary or contractual decisions relating to principals, assistant principals, CEOs, or COOs. For example, evidence that a District 205 elementary school principal's state certification credentials were known by the Board of Education to have lapsed, without consequences similar to those alleged by Plaintiff, could be admissible at trial. Defendants' assertion that only non-tenured principals of the other District 205 traditional high school principals are similarly situated to Plaintiff is not supported by sufficient contextual evidence or relevant Seventh Circuit case ...