Sixth Circuit Considers Whether Comparator Info Is Discoverable In A Failure To Promote Case

Author:Ms Natalie Stevens and Samuel H. Ottinger
Profession:Ogletree, Deakins, Nash, Smoak & Stewart

In Jones v. Johnson, No. 18-2252 (January 9, 2020), the Sixth Circuit Court of Appeals considered the discoverability of comparator information in a case involving an allegation that an employer failed to promote an employee. The court reversed a district court's decision in favor of an employer on the grounds that it had improperly limited the scope of discovery. The Sixth Circuit's decision highlights that documentary evidence reviewed by decision-makers and/or about which they had knowledge will likely be found to be discoverable, and depositions of decision-makers and those who provided information to the decisions-makers during the hiring process will likely be found to be permissible.


Kyisha Jones, a Department of Homeland Security (DHS) employee, filed a lawsuit alleging that her employer had discriminated against her on the basis of her gender by failing to promote her. Specifically, she claimed that her employer passed her over for promotions in June 2011 and August 2011.

DHS's port director, who was Jones's fourth-line supervisor, recommended the promotion of four male employees and one female employee in a June 2011 round of promotions, and one male employee and one female employee in an August 2011 round of promotions. In doing so, the port director reviewed the job selection file, consisting of a list of candidates he received from the human resources department, their resumes, and their applications. He also spoke with his assistant port directors, but not with the first-line supervisors of the candidates. He, however, did not conduct any interviews with and did not review the personnel files of the candidates.

The port director testified that he had not recommended Jones for a promotion at that time because she did not always work well with her supervisors and had previously been suspended for five days for failure to follow a supervisor's order. Jones contended that one of the male employees who was promoted had a similar disciplinary record, and, thus, DHS's reason for not promoting her was a pretext for unlawful discrimination.

DHS filed a motion for summary judgment, and Jones requested that the court allow her to conduct discovery. The district court:

permitted Jones to depose the port director, but limited the scope of his deposition to his reasons for rejecting Jones's application for promotion, precluding inquiry into the disciplinary record of the male employee Jones contends had a similar disciplinary...

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