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Ward v. Textron Aviation Inc.

United States District Court, D. Kansas

May 10, 2019

RANDY WARD, Plaintiff,


          Gwynne E. Birzer, United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion for Protective Order and Memorandum in Support (“Motion”) (ECF No. 40). After careful consideration of Defendant's Motion, Plaintiff's Memorandum in Opposition (ECF No. 45), and Defendant's Reply (ECF No. 54), the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion.

         I. Background[1]

         This case is currently controlled by Plaintiff's Third Amended Complaint, [2] which alleges Defendant violated Plaintiff's rights under the Americans with Disabilities Act (“ADA”), [3] Family Medical Leave Act (“FMLA”), [4] and Kansas Act Against Discrimination (“KAAD”).[5] Plaintiff was employed by Defendant from 1997 to March 15, 2015, when he was terminated due to absences.[6] According to Plaintiff, his absences were directly connected to his Crohn's disease and ulcerative colitis, which he asserts are disabilities because they are medical conditions substantially limiting several major life activities and bodily functions.[7] Plaintiff asserts Defendant was fully aware of these facts, and rather than engaging in any interactive process with him concerning his disabilities or granting him reasonable accommodations, Defendant terminated him.[8]

         Plaintiff also applied for three positions with Defendant in May of 2016, but claims he was refused because Defendant deemed him “ineligible for rehire.”[9] Additionally, Plaintiff states he applied for a position with Strom Aviation, which had projects at Defendant's facility, but he was refused for that job as well because Defendant fired him for attendance issues.[10] Thus, Plaintiff alleges Defendant retaliated against him, terminated him and subsequently refused to hire him on the basis of his disabilities.[11] Defendant denies any wrongdoing.[12]

         During the course of discovery, Plaintiff notified Defendant of his intent to depose Defendant's corporate representative pursuant to Fed.R.Civ.P. 30(b)(6).[13] As required by Rule 30(b)(6), Plaintiff listed the deposition topics in his notice.[14] The instant motion deals with topics 17 and 18, [15] and seeks a protective order from this Court forbidding Plaintiff from inquiring into those topics at the deposition.

         II. Defendant's Motion For Protective Order (ECF No. 40)

         A. Duty to Confer

         As stated above, Plaintiff's Motion for Protective Order (“Motion”) seeks a protective order forbidding Plaintiff from inquiring into topics 17 and 18 at an upcoming deposition. As a threshold matter, the Court first considers whether the parties have sufficiently conferred regarding Defendant's Motion, as is required by D. Kan. Rule 37.2.[16]A review of the briefings indicates counsel conferred via email and telephone in an effort to resolve Defendant's issues with Plaintiff's depositions topics.[17] In fact, the parties were able to resolve all of Defendant's objections expect for those regarding topics 17 and 18. As such, the Court is satisfied counsel have adequately conferred as required by the above-cited rule.

         B. Legal Standard

         Under Rule 26(b)(1), a party may receive discovery “regarding any non-privileged matter that is relevant to any party's claim or defense . . . .” Relevancy is to be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on” any party's claim or defense.[18] In other words, the court should permit a request for discovery unless “it is clear that the information sought can have no possible bearing” on a claim or defense.[19] Information need not be admissible in evidence to be discoverable, but the scope of discovery must be proportional to the needs of the case.[20] Relevancy determinations are generally made on a case-by-case basis.[21]

         Additionally, under Fed.R.Civ.P. 26(c)(1), the “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Such an order may, among other things, forbid the requested discovery, specify the terms for the disclosure or discovery, or limit inquiry into certain matters.[22] The party seeking the protective order has the burden of demonstrating good cause for it.[23] To prove good cause, the moving party must offer “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.”[24]Whether to enter a protective order lies within the court's discretion.[25]

         C. Discussion

         1. Topic 17

         Topic 17 seeks to inquire about the “things Defendant did in 2016, 2017, and 2018 to implement and comply with the February 18, 2016 Consent Decree, in E.E.O.C. v. Cessna Aircraft Co., No. 2:15-cv-01166 (E.D. Wisc.), including specific policy changes, training, reports, correspondence, and the HR & legal personnel associated with this topic.”[26] Before discussing the parties' arguments, a brief review of the above-referenced litigation and Consent Decree is necessary.

         a. Consent Decree

         On September 29, 2015, the Equal Employment Opportunity Commission (“EEOC”) filed a Complaint against Cessna Aircraft Co. (now known as the Defendant here, Textron Aviation Inc.) in the United Stated District Court for the Eastern District of Wisconsin.[27] The Complaint was filed on behalf of William Cote (“Cote”), Clark Buehler (“Buehler”), and a class of similarly situated individuals, and alleged unlawful employment practices at Defendant's Wisconsin, Kansas, and other facilities in violation of the ADA.[28]In 2013, Defendant offered Cote and Buehler jobs conditioned on medical examinations.[29]The EEOC alleged Defendant illegally withdrew those offers based on medical disabilities discovered as a result of the medical examinations despite Cote's doctor stating he could work with no restrictions, and Buehler's perceived medical issue arising from a twelve-year old shoulder injury for which Defendant could not accommodate the “historic restrictions” placed on him by a previous employer.[30]

         The EEOC further alleged Defendant failed to consider Cote for subsequent positions for which he applied on the basis of his disability, made impermissible medical inquiries into Cote's medical history after he had provided medical documentation he could work without restriction, used an unlawful qualification standard (achievement of maximum medical improvement before consideration of ADA protections), and retaliated against Cote by not hiring him after he contested Defendant's practices.[31] Thus, the EEOC asserted Defendant discriminated against Cote, Buehler, and a class of similarly situated individuals on the basis of disability.[32]

         To resolve the case, Defendant, without admitting liability, entered into a two-year Consent Decree on February 18, 2016.[33] In that Consent Decree, Defendant agreed to (1) adopt, implement, and distribute a formal, written anti-discrimination policy covering specific ADA topics; (2) post this policy on its website and in its facilities, and provide it to employees who were extended conditional offers of employment; (3) provide annual training to Human Resources Department employees and Health Services employees involved in recruiting, hiring, and/or the reasonable accommodation process; (3) post ADA specific notices and a notice about the Consent Decree on its facility bulletin boards to inform employees of the same; (4) maintain a record of individuals whose job offers were rescinded after post-offer, pre-employment physical examinations, and for every applicant whose job offer was rescinded based on a medical reason, report to the EEOC with specific information, including specific attempts to accommodate the individual and the outcome of those attempts; (5) pay monetary settlements to Cote and Buehler; and (6) notify the EEOC regarding accomplishment of the above items and submit annual certifications.[34]

         b. Parties' Arguments

         Defendant argues inquiry into the Consent Decree is irrelevant because it arose out of litigation dealing with alleged illegal withdrawals of conditional employment offers following pre-employment medical examinations, which are not at issue this action. Here, Defendant states it terminated Plaintiff due to excessive absences, and while Plaintiff did apply for other jobs in 2016 after his termination, Plaintiff's applications were denied because he was deemed ineligible for rehire by Defendant. Thus, per Defendant, it had no reason to conduct a medical examination of Plaintiff or even make an offer of employment, which distinguishes this case from the EEOC litigation. Defendant also argues Plaintiff's request is overbroad and unduly burdensome because it would have to prepare a corporate representative to testify about every single aspect of the Consent Decree.

         Plaintiff, on the other hand, argues discovery is broader than Defendant asserts. Plaintiff insists inquiry into the Consent Order is relevant because it relates to Defendant's employment practices around the time Plaintiff was terminated and subsequently applied for other jobs with Defendant. Plaintiff alleges Defendant terminated him based on his medical disabilities and then deemed him ineligible for rehire based on those same disabilities. Specifically, Plaintiff argues the materials Defendant submitted to the EEOC to demonstrate its ...

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