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Zukley v. Town of Schererville

United States District Court, N.D. Indiana, Hammond Division

November 30, 2016

JENNIFER ZUKLEY, Plaintiff,
v.
TOWN OF SHERERVILLE, et al., Defendants.

          OPINION AND ORDER

          JOHN E. MARTIN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion to Compel [DE 57], filed on July 6, 2016. Plaintiff asks the Court to compel Defendants to provide certain documents in response to Plaintiff's discovery requests. On July 15, 2016, Defendants filed a response and moved for a protective order [DE 65], and on July 23, 2016, Plaintiff filed her reply [DE 68].

         I. Background

         Plaintiff's Amended Complaint [DE 29] alleges multiple claims against the Town of Schererville, the Shererville Police Department chief and deputy chief, and two police commanders. Relevant here is Plaintiff's allegation that she was discriminated against because of her gender during her employment with the Police Department. Specifically, Plaintiff alleges that, in December 2013, her supervisors placed her on administrative leave after she made a comment about killing herself. Plaintiff contends that male officers in the Police Department have made similar comments and were not placed on administrative leave or declared unfit for duty.

         On February 4, 2016, Plaintiff served Defendants with her Fourth Request for Production of Documents. Two of the requests in her Fourth Request for Production are at issue here. Plaintiff's Request 44 sought “[a]ll documents regarding ‘return to work' or psychological examinations, conducted during or before employment as part of the application process, for Officers Djukic, Myszak and Aravanitis.” Plaintiff's Request 49 sought “[a]ll documents related to administrative leave, psychological evaluation and fitness for duty examination of Officer Myszak in January 2016.” Defendants have refused to turn over the requested psychological evaluations. Plaintiff now moves the Court to compel production of those documents.

         II. Analysis

         A party may seek an order to compel discovery when an opposing party fails to respond to discovery requests or provides evasive or incomplete responses. See Fed. R. Civ. P. 37(a). A party objecting to the discovery request bears the burden of showing why the request is improper. McGrath v. Everest Nat'l Ins. Co., 625 F.Supp.2d 660, 670 (N.D. Ind. 2008). The Court has broad discretion when deciding discovery matters. Thermal Design, Inc. v. Am. Soc'y of Heating, Refrigerating & Air-Conditioning Eng'rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014); Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993).

         Plaintiff claims she was discriminated against on the basis of her gender, her theory being that Defendants treated her differently than male officers who had made similar “jokes” or comments about suicide in the past. To support her discrimination claim, Plaintiff seeks the pre-employment psychological evaluations of Djukic, Myszak, and Aravanitis, who are all men. Plaintiff alleges these officers also made on-the-job comments about suicide but have never been placed on administrative leave or declared unfit for duty based on those comments.

         Plaintiff wishes to compare the officers' backgrounds to her own. Plaintiff's pre-employment background check revealed that she had tried to kill herself in 1989. As a result, Plaintiff's supervisors were aware of the prior suicide attempt at the time they placed her on administrative leave for making comments about suicide. At least two of these supervisors have testified that the previous suicide attempt factored into their decision to place Plaintiff on leave.

         If one of the officers who made suicide-related comments also had a history of suicide attempts like Plaintiff but was not placed on administrative leave, Plaintiff will argue that she was treated differently than the male officers. Put simply, Plaintiff hopes to use Djukic, Myszak, and Aravanitis to demonstrate that her supervisors based their decision to place her on leave on a pretextual rather than a legitimate basis.

         A. Waiver

         Before reaching the substantive merits of Plaintiff's Motion, the Court must consider Plaintiff's assertion that Defendants waived any of the objections before the Court because Defendants failed to timely produce a privilege log. Plaintiff's Fourth Request for Production of Documents was served on February 4, 2016. The Fourth Request for Production included an interrogatory asking that Defendants identify any documents not produced in response to the Fourth Request for Production based on an objection.

         Defendants responded to the Fourth Request for Production on March 11, 2016. Defendants did not object to the requests at issue before the Court, and in response to the related interrogatory they explicitly stated that they were not withholding any documents based on an objection. But Defendants did not turn over all the reports Plaintiff asked for in Requests 44 and 49, namely the psychological reports for the male officers.

         By May 13, 2016, in response to an email from Plaintiff's counsel's asking about the missing reports, Defendants' counsel-for the first time-objected to the requested production on relevance and “medical confidentiality” grounds. Defendants sent a supplemental response on June 6, 2016, reiterating their objection on relevance grounds as to Officer Aravanitis. Finally, on June 21, 2016, ...


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