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Amador v. U.S. Bank National Association

United States District Court, D. Minnesota

November 6, 2017

Antonio G. Amador, Jr., Plaintiff,
v.
U.S. Bank National Association, Defendant.

          Matthew J. Schaap and Robert B. Bauer, Dougherty, Molenda, Solfest, Hills & Bauer P.A. for Plaintiff.

          David A. Schooler and Ellen A. Brinkman, Briggs & Morgan, P.A., for Defendant.

          ORDER

          SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

         Before the Court is the Objection [Doc. No. 79] filed by Plaintiff Antonio G. Amador, Jr. (“Plaintiff”) to the magistrate judge's text-only order of September 19, 2017 [Docket Entry. No. 78], as reflected in the Court's minutes [Doc. No. 77] and the hearing transcript [Doc. No. 85]. Plaintiff objects to the magistrate judge's denial of his Motion to Compel Discovery [Doc. No. 69]. Based on the Court's review of the parties' arguments and the record, the Court grants in part and denies in part Plaintiff's Objection.

         I. BACKGROUND

         The background of this case is more fully set forth in this Court's January 19, 2017 Order (“January 19 Order”) [Doc. No. 45]. Therefore, only the facts necessary to contextualize Plaintiff's instant Objection are included here. Plaintiff, who is Hispanic, was employed by Defendant U.S. Bank as a branch manager from September of 2011 until his termination in April of 2015. (Compl. ¶¶ 7; 24; 38 [Doc. No. 1-1].) In the early months of 2016, he brought this suit, alleging that Defendant terminated his employment based on unlawful racial discrimination.[1] (See Compl.) Defendant, however, maintains that it terminated Plaintiff for three legitimate business reasons: (1) “improper use of his corporate credit card;” (2) “compliance concerns rooted in his use of Customer Advice Debit, or ‘CAD, ' slips;” and (3) “his disobedience of a directive from upper level management to cease servicing a customer after Plaintiff transferred branches” from the Midway branch to the Eagan Town Center branch. (Def.'s First Opp'n Mem. at 2 [Doc. No. 76.])

         Defendant's second stated reason-Plaintiff's alleged misuse of CAD slips-has engendered a series of discovery disputes between the parties. Defendant argues that Plaintiff's “frequent use” of CAD slips-which do not require a customer's signature-to transfer money between the accounts owned by “DK, ” a prominent, or “Tier 1”[2] customer of Defendant, violated Defendant's standard policies and practices. (Id. at 3.) Defendant contends that the use of CAD slips to transfer money from a customer's account to another account also controlled by that customer presents a significant security risk, because if a customer later challenges the transfer, there is no signature by which the bank can validate the transfer. (Id.) Defendant maintains that it generally discourages the use of CAD slips and that employees are directed to use them primarily to correct teller error. (Id.) At the beginning of this case, Defendant also maintained that Plaintiff was the only employee “who has ever used the Customer Advice Debits in this manner.” (Tr. of April 20, 2017 Teleconference (“Apr. 20 Teleconf.”) at 11 [Doc. No. 59]).

         Plaintiff, however, disputes Defendant's position. He argues that other employees similarly used CAD slips, and, in fact, contends that when he began working for Defendant, he was specifically trained to use CAD slips to transfer money between the accounts of “good, ” or “top” customers, including those designated as Tier 1. (Amador Aff. ¶¶ 6-10; 14.) Plaintiff identifies two managers-Nate Kuehl and Logan Rogers-who allegedly trained him to use CAD slips in this manner. (Id. ¶ 9.)

         In October of 2016, Plaintiff moved to compel production of certain CAD slips. He sought, inter alia, all CAD slips from Defendant's Minnesota branches for the five years preceding Plaintiff's motion, excluding CAD slips used to correct teller errors. (First Mot. Compel Discovery at 1-2 [Doc. No. 22].) The magistrate judge denied Plaintiff's request, (see Ct. Min. of Nov. 29, 2016 Proceedings [Doc. No. 33]), but this Court respectfully reversed in part. (See Jan. 19 Order [Doc. No. 45].) This Court noted that a blanket denial of Plaintiff's discovery request was error, as the court must “balance the need for the information, the importance of discovery, and Plaintiff's lack of access to it against the tremendous burden and expense to U.S. Bank.” (Id. at 8.) Then, weighing the considerations of Federal Rule of Civil Procedure 26(b), this Court noted that “[w]hether other U.S. Bank branch managers used CAD slips under the same or similar circumstances in which Amador used them for DK is of significant importance” to both sides. (Id.) But, on the other hand, the Court also “appreciate[d] U.S. Bank's concerns regarding the difficulty and cost of producing the discovery for a five-year period and for all U.S. Bank branches in Minnesota.” (Id. at 8-9.) Balancing these concerns, the Court permitted some discovery of CAD slips and instructed the parties to agree on a sampling protocol to locate CAD slips unrelated to teller error, but “limited to a sample of U.S. Bank branches in Minnesota for an agreed upon two-year period between 2011 and 2015.” (Id. at 9.)

         After this Court's January 19 Order, the parties were unable to agree on the scope of discovery, and this Court held a teleconference on April 20, 2017. (See Apr. 20 Teleconf.) During that call, Plaintiff challenged Defendant's proposal to limit discovery to a sample of 200 customer accounts and 40 hours of work. (Id. at 2-9.) Plaintiff was concerned about whether 200 accounts would be an adequate sample size-given the total number of accounts at Defendant's 135 Minnesota branches-and whether 40 hours of review could produce meaningful results. (Id. at 3.) On the other hand, Defendant contended that whether sampling was limited to 50 accounts, or expanded to 5, 000, the likelihood of finding any CAD slips used in the way Plaintiff used them was extremely low-akin to finding “a needle in a haystack.” (Id. at 13.) Defendant reiterated its position that it did not think “we're ever going to find anything that [Plaintiff's] looking for because that's just not the way [CAD slips] are used, ” (id. at 15); “[p]eople don't use them this way; and, in fact, that's why [Plaintiff] was fired.” (Id. at 13.)

         Recognizing that sampling as initially suggested by the Court could be costly and would possibly serve only to identify the prevalence of CAD slips, and that at that point prevalence was not the primary issue, the Court suggested-and the parties agreed-that a questionnaire be utilized instead to determine if Defendant's other branch managers used CAD slips similarly to Plaintiff. (Id. at 17-25.) The Court recognized that the heart of Plaintiff's argument was that his use of CAD slips “was a pretext for terminating him because he's Hispanic; and that other white branch managers had, although rarely, used CADs and they weren't terminated.” (Id. at 16-17.) In other words, the “real question, ” was whether “whites and Hispanic branch managers [were] treated differently over the improper use of CADs.” (Id. at 16.) This Court thus instructed the parties to send out a questionnaire to white managers working at eight different branches from 2013 to 2015 to identify whether they used CAD slips for anything other than correcting teller error. (Id. at 19; 21- 22.)

         On June 16, 2017, Defendant produced twelve completed questionnaires. (See Pl.'s Letter of June 29, 2017 (“Pl.'s June 29 Letter”) at 1 [Doc. No. 63].) Contrary to Defendant's initial position that only Plaintiff used CAD slips to transfer money between a customer's bank accounts, the questionnaires revealed that out of the twelve managers surveyed, two used CAD slips for purposes other than correcting teller error. (Id.) Both managers-Nathan Kuehl and Janelle Raaen-were employed at Defendant's Southdale branch in Edina during the relevant time period, but have since been promoted. (Pl.'s Letter of Aug. 4, 2017 at 1 (“Pl.'s Aug. 4 Letter”) [Doc. No. 65].) Kuehl was also a manager at the Midway Branch, (id.), and he allegedly trained Plaintiff on the use of CAD slips. (Tr. of Sept. 18, 2017 Mots. Hr'g (“Sept. 18 Hr'g”) at 17 [Doc. No. 85].) In addition, Plaintiff also found evidence that an assistant manager employed by Defendant had used CAD slips similarly to Plaintiff, i.e., to transfer money between accounts controlled by the same customer but without that customer's signature. (Pl.'s Aug. 4 Letter at 2 (citing U.S. Commodity Futures Trading Comm'n v. U.S. Bank, N.A., 13-cv-2041-LRR, 2014 WL 6474183, at *11 (N.D. Iowa Nov. 19, 2014).)

         The responses to the questionnaires, and the intended effect of the questionnaires in general, triggered another discovery dispute between the parties. Plaintiff sought additional discovery focused on Raaen, Kuehl, and Timmerman, and their respective use of CAD slips. (Pl.'s June 29 Letter at 2.) He argued that the questionnaires were a means to an end, “designed to narrow the focus of any discussions around further discovery, ” rather than the end themselves. (Pl.'s June 29 Letter at 2; Def.'s Letter of June 29, 2017 (“Def.'s June 29 Letter”) at 7, ¶ 2 [Doc. No. 62].) Defendant, however, disputed Plaintiff's interpretation of this Court's January 19 Order and April 20 teleconference, stating that it believed the next step after completion of the questionnaires was “getting the summary judgment motion back on the calendar [and] not more discovery.” (Def.'s June 29 Letter at 2.)

         After a June 30, 2017 teleconference with the parties, the magistrate judge ordered some focused additional discovery. (See Ct. Min. of June 30, 2017 Proceedings [Doc. No. 64].) The magistrate judge ordered: (1) Defendant to produce the sealed exhibit and referenced documents relating to the CAD slips issued by Hope Timmerman from the litigation discussed in U.S. Commodity; (2) ...


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