Griffin v. Union Pacific Railroad Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINDSLEY TROY GRIFFIN,
Plaintiff,
vs.
UNION PACIFIC RAILROAD COMPANY,
Defendant.
8:23CV356
ORDER
This case comes before the court on Plaintiff’s motion to compel responses to
Plaintiff’s Second Set of Interrogatories and Plaintiff’s Third Request for Production of
Documents. (Filing No. 62). For the reasons that follow, the motion to compel will be
denied.
I. FACTUAL BACKGROUND
Plaintiff alleges in this matter that Union Pacific violated the Americans With
Disabilities Act (ADA) and the Colorado Anti-Discrimination Act (CADA) by engaging in
disparate treatment, retaliation, and intentional discrimination. (Filing No. 1). He alleges
in particular that he sought counseling during a difficult divorce and was diagnosed with
post-traumatic stress disorder and generalized anxiety disorder. His supervisors changed
their attitudes toward him after he disclosed his mental health conditions. He was approved
for and began short-term disability leave, but was later terminated by his superior, Daniel
Torres (“Torres”). (Filing No. 1 at 2-5). Defendant alleges Plaintiff was placed on
administrative leave while it investigated certain negative statements he made during a
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“MAPS Class” and that he inappropriately contacted complainants to inquire about the
investigation while it was pending, against his employer’s direct instructions. (Filing No.
69; Filing No. 68 at 26-29).
The parties have had several discovery disputes in this matter, primarily involving
Plaintiff’s attempts to obtain comparator evidence, or evidence of how he was treated
compared to other similarly situated individuals. Defendant has maintained that Plaintiff’s
discovery requests fall outside of traditional comparator evidence and that no such
evidence exists. The matters have been addressed several times by the undersigned,
including during a discovery dispute call on September 5, 2025, after which the court
concluded that Plaintiff’s discovery requests were overbroad and extended beyond the
scope of the Eighth Circuit’s definition of similarly situated employees. Notwithstanding
the close of written discovery, the court permitted Plaintiff to “revise and narrow the
requests to identify with specificity the appropriate subset of employees, by management
position, reporting hierarchy, type of conduct, and other relevant characteristics necessary
to identify comparators, if any.” (Filing No. 47).
On September 12, 2025, Defendant notified the court that it agreed to an in camera
review of certain employment documents to determine whether the employees listed in
Requests for Production 30-32 were comparators of Plaintiff. (Filing No. 52). After
conducting that review, the court entered an order on October 17, 2025, and concluded that
the employees identified by Plaintiff were unlikely to be considered similarly situated and
the documents need not be produced. (Filing No. 56, restricted order). Plaintiff did not
object.
Plaintiff served the supplemental discovery requests discussed during the September
5, 2025 call on September 15, 2025. (Filing No. 53). In his Second Set of Interrogatories
and Third Request for Production of Documents, Plaintiff sought investigatory,
disciplinary, and interactive process files for all General Manager, Superintendent of Train
Operations (STO), Manager of Train Operations (MTO), and Manager of Yard Operations
(MYO) employees in the Northern Region who were disciplined, demoted, or terminated
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from January 2020 to April 2024, and who fit into the following categories: (1) took short-
term disability while Torres was manager of the Northern Region; (2) requested a
reasonable accommodation relating to a mental health disorder during that time period; (3)
disclosed a mental health disorder to a supervisor or the human resource department; or (4)
reported disciplinary or retaliatory conduct on the basis of a mental health disorder. (Filing
No. 68 at 93, Filing No. 68 at 100).1 These requests led to the current discovery dispute.
Defendant served responses to Plaintiff’s discovery requests on October 15, 2025.
(Filing No. 68 at 93, Filing No. 68 at 100). Defendant again objected on the basis that the
discovery requests were overly broad, unduly burdensome, and not relevant or proportional
to the needs of the case because the employees in those positions are not comparators to
Plaintiff. (Filing No. 59; Filing No. 69 at 4). The matter came on for a further discovery
dispute call on November 5, 2025, during which Defendant argued that the second set of
interrogatories and third request for production of documents was still too broad as Plaintiff
sought information regarding employees who were not similarly situated or comparators,
as discussed in the court’s earlier order (Filing No. 56).
During that same call, Plaintiff’s counsel indicated they were no longer seeking
comparator evidence focusing on the conduct of the individual employees, but instead were
seeking “pattern and practice” evidence regarding Union Pacific’s conduct. Specifically,
Plaintiff’s counsel sought discovery of instances where Union Pacific discriminated against
individuals for taking short term disability or having a mental health disability. (Filing No.
79, audio file at 12:30). Plaintiff sought evidence of what he believed was Defendant’s
widespread pattern of discrimination and/or retaliation against people with mental health
disabilities. After further argument, the court concluded again that the discovery requests
1 The court notes that Plaintiff’s index of evidence in support of the motion to compel purportedly included
Exhibit A: UP’s Answers to Plaintiff’s 2nd Set of Interrogatories, and Exhibit B: UP’s Responses to
Plaintiff’s 3rd Request for Production of Documents. (Filing No. 64). The exhibits identified were not
attached. Defendant noted the oversight in its response to the motion to compel (Filing No. 69 at 4, n. 1),
and included the documents as Exhibits 13 and 14 in its own index of evidence (Filing No. 68). As Plaintiff’s
omission appears to be inadvertent, there was no formal objection from Defendant to the omission, and the
documents were disclosed in discovery, the court reviewed Filing No. 68 in preparing this order.
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were overbroad and permitted Defendant to stand on its objections. (Filing No. 59). But
recognizing that the dispute would likely continue, the court permitted Plaintiff to file a
formal motion to compel. Therein, Plaintiff acknowledges it now seeks to compel “pattern
and practice” discovery, as opposed to comparator evidence, in an attempt to establish a
pattern of discrimination and retaliation against employees in violation of the Americans
with Disabilities Act. (Filing No. 63 at 1).
II. ANALYSIS
“Generally, parties may obtain discovery regarding any unprivileged matter so long
as it is relevant to the subject matter of the pending action.” Sikora v. Nat'l Indem. Co., No.
8:13CV68, 2013 WL 5524551, at *2 (D. Neb. Oct. 4, 2013); see also McGowan v. Gen.
Dynamics, Corp., 794 F .2d 361, 363 (8th Cir.1986). Information within the scope of Rule
26(b) “need not be admissible in evidence to be discoverable,” Fed. R. Civ. P. 26(b)(1), and
the scope of permissible discovery is broader than the scope of admissibility. See Hofer v.
Mack Trucks, Inc., 981 F.2d 377 at 380 (8th Cir. 1992). However, courts may limit
discovery where requests are excessively broad and call for the production of irrelevant
information. Sikora, 2013 WL 5524551, at *2; McGowan 794 F .2d at 363. The party
requesting discovery must present a threshold showing of relevance before parties are
required to “open wide the doors of discovery.” Hofer, 981 F.2d at 380. The scope of
permissible discovery under Rule 26(b)(1) is limited by the “proportionality” or balancing
test set forth in Rule 26(b)(2)(C). Under Rule 26(b)(2)(C):
[T]he court must limit the frequency or extent of discovery otherwise allowed
by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome,
or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the
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parties' resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.
Fed.R.Civ.P. 26(b)(2)(C).
Plaintiff references United States v. Univ. of Nebraska at Kearney, 2014 WL
4215381, at *2 (D. Neb. Aug. 25, 2014), in which Magistrate Judge Zwart noted “[c]ourts
have permitted plaintiffs alleging a practice or pattern of discrimination to prove their case
with evidence of Defendant's other discriminatory actions. (Citing Trevino v. Celanese
Corp., 701 F.2d 397, 405 (5th Cir.1983); Miller v. Poretsky, 595 F.2d 780, 790–791, 796
(D.C.Cir.1978) (Robinson, J., concurring) (evidence of past acts of discrimination is
relevant to prove motive in discrimination cases). But unlike in Univ. of Nebraska, Plaintiff
in this case has not alleged that he is part of a class or alleged a pattern or practice claim.
(Filing No. 1).
A pattern or practice claim is often asserted in class actions, while individual
plaintiffs claiming retaliation or discrimination prove intentional discrimination either by
direct or indirect evidence. Direct evidence is shown through evidence of conduct or
statements by persons involved in the decision making process viewed as directly reflecting
the alleged discriminatory attitude, and indirect evidence is shown by creating an inference
of discrimination or retaliation under the McDonnell Douglas burden-shifting framework.
Lipp v. Cargill Meat Solutions Corporation, 911 F.3d 537 (8th Cir. 2018) (applying
McDonnell Douglas to an ADA claim); See, also, Shirrell v. St. Francis Med. Ctr., 793 F.3d
881, 887 (8th Cir. 2015) (applying McDonnell Douglas to a Title VII claim).
McDonnell Douglas requires an individual plaintiff to establish a prima facie case
of discrimination before the burden shifts to the employer to present evidence of a
legitimate, nondiscriminatory reason for its adverse action. Edwards v. Hiland Roberts
Dairy, Co., 860 F.3d 1121 (8th Cir. 2017). Then, if the employer satisfies its burden, the
presumption disappears and the plaintiff must provide evidence demonstrating the
nondiscriminatory reason is mere pretext for intentional discrimination. Id. at 1125. Pretext
is shown by showing an employer “(1) failed to follow its own policies, (2) treated
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similarly-situated employees in a disparate manner, or (3) shifted its explanation of the
employment decision.” Id. (citing Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899,
904 (8th Cir. 2015)). The test to determine whether someone is sufficiently similarly
situated is “rigorous” and those comparators must have dealt with the same supervisor,
have been subject to the same standards, and engaged in the same conduct without any
mitigating or distinguishing circumstances. Id.
Here, the court has already denied Plaintiff’s requests for comparator evidence of
those who were deemed not likely to be considered similarly situated. (Filing No. 56).
Plaintiff now seeks the disciplinary, personnel, and complaint files for all general
managers, STOs, MYOs, and MTOs in Torres’ chain of command. The job descriptions for
the general manager, STO, MTO, and MYO positions contain different duties and
responsibilities and the employees who work in those roles are not necessarily similarly
situated to Plaintiff. (Filing No. 68 at 3-16). The current request appears to be an end-run
around the court’s prior discovery rulings that were based upon Eighth Circuit authority
and Plaintiff has not shown how this information would be relevant or assist him in proving
his case under the McDonnell Douglas framework.
In support of his motion to compel, Plaintiff refers to several cases for the broad
proposition that pattern and practice evidence may sometimes be relevant in individual or
direct discrimination cases like his. Some of the cases bear mention here and are
distinguishable. In Brown v. West Corp. 287 F.R.D. 494, 500-01 (D. Neb. 2012), for
example, the district court noted that while other complaints indicating a pattern of racial
discrimination may be circumstantial evidence of individual discriminatory intent, it
emphasized that the evidence would be of “marginal” relevance. The court then referenced
other Eighth Circuit authority indicating it was appropriate to “limit[] the discovery of
company records to the local facility where plaintiff was employed, where there is no
showing of the need for regional or nationwide discovery.” Id. (quoting Sallis v. Univ. of
Minn, 408 F.3d 470, 478 (8th Cir. 2005)). The court also rejected the plaintiff’s efforts to
obtain discovery of company statistics for similar reasons because the plaintiff failed to
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show any “particularized need and relevance to move beyond the source of the complained
of discrimination.” Id. (internal quotation and citation omitted). The court noted in
particular that “[g]iven the individualized allegations of discrimination, it is unlikely that
any useful comparisons can be made . . . . Therefore, the plaintiff’s request must be limited
to the makeup of those who have been subject to the hiring, firing, or direct managerial
control of those individuals the plaintiff is accusing of discriminatory treatment.” Id. at
502.
Plaintiff also argues that Sallis, 408 F.3d 470, permits the discovery of other
complaints of discrimination so long as they focus on the decisionmakers and departments
relating to the plaintiff’s employment and discipline. But there, the court indicated the
requests were too broad because Plaintiff sought discovery from the whole university
including all departments, rather than the one department plaintiff worked in. The circuit
court emphasized that “[c]ourts have limited the discovery of company records to the local
facility where plaintiff was employed, where there is no showing of the need for regional
or nationwide discovery.” Id. at 478 (internal citation omitted). The court then agreed with
the magistrate judge’s determination (adopted by the district court) that the requested
discovery was, among other things, overly broad. Id.
Similar reasoning applies here. While the court recognizes that Plaintiff seeks the
complaints of employees within Torres’ chain of command, it goes too far to request
disclosure of complaints of all designated employees in an entire railroad region if not at
least limited to those similarly situated employees or even those individuals in the same or
similar position. See Univ. of Nebraska 2014 WL 4215381 at *4, citing Sallis, 408 F.3d 470
(holding Plaintiff's request for information on every allegation of employment
discrimination against the defendant was overly broad and unduly burdensome, and district
court was entitled to limit discovery to information regarding the department in which
plaintiff worked). The broad requests also have other potential effects, including
implicating privacy concerns for those employees who had requested accommodation or
raised discrimination or retaliation concerns. It may also chill future reporting if “by doing
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so, their private files can be scoured through by the federal government for a wholly related
case.” See Univ. of Nebraska, at *6.
Accordingly,
IT IS ORDERED:
1) Plaintiff’s motion to compel is denied. (Filing No. 62).
2) The status conference set for January 13, 2026 at 9:00 a.m. to discuss case
progression, the parties’ interest in settlement and the trial and pretrial
conference settings is now continued and will be held February 12, 2026 at
9:00 a.m.
Dated this 12th day of January, 2026.
BY THE COURT:
s/ Ryan C. Carson
United States Magistrate Judge
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