Court Orders Deposition of VP of HR

By Sean S. Kelly September 14, 2021
a woman with her hands to her head

​A former employee has a right to depose the executive vice president (VP) of HR in an Americans with Disabilities Act (ADA) discrimination case when the VP was the decision-maker for the employer's benefits plan, ruled the 11th U.S. Circuit Court of Appeals.

The plaintiff worked for Alfa Mutual Insurance Co. for 27 years. Several years into her employment, she was diagnosed with multiple sclerosis (MS). Due to her illness, she experienced migraines, had difficulty sitting for extended periods and had mobility issues. She was also required to take expensive medications costing her employer's insurance plan around $10,000 per month.

The plaintiff's illness did not affect her ability to work. She continued to demonstrate a strong work ethic and received outstanding performance reviews. Two years after her diagnosis, she was selected out of nearly 1,000 employees as "employee of the year."

Her exceptional reviews continued up until she was terminated. Alfa claimed she was let go due to automation of some of her job functions and to reduce job-related costs. The plaintiff claimed she was terminated because of the high costs to the company in treating her MS.

She filed suit, claiming disability discrimination under the ADA and attempted to depose the executive VP of HR. He had signed the plaintiff's severance paperwork. He was also Alfa's decision contact on Alfa's BlueCross BlueShield insurance documents and Alfa's Employee Retirement Income Security Act employee benefits plan.

After unsuccessful attempts to schedule the VP's deposition, the plaintiff made over 10 attempts to compel his deposition through the court. The court denied each attempt and later granted summary judgment for Alfa.

On appeal, the 11th Circuit ruled that the district court unjustly curtailed the plaintiff's access to full and fair "discovery," which includes depositions. The court of appeals reasoned that the scope of relevant discovery is broad and strongly favors disclosure.

The scope of discovery does, however, have its limits. A litigant cannot conduct an examination in bad faith, or in a manner as to annoy, embarrass or oppress the person subject to the inquiry. Nor can a litigant obtain discovery as to irrelevant or privileged material.

In this case, the court found that a deposition of the VP would not cross any of those boundaries. The VP had access to Alfa's medical insurance information. He was also a member of the senior management team that made the ultimate decision to reduce costs. Although his schedule was busy, the court noted, "discovery is not a one-way proposition" designed to favor one class of litigants over another.

The court reversed summary judgment for the employer, sending the case back to the district court with instructions to allow the deposition of the VP.

Akridge v. Alfa Mutual Insurance Co., 11th Cir., No. 19-10827 (June 21, 2021), petition for rehearing and petition for rehearing en banc denied (Aug. 17, 2021).

Professional Pointer: It is important to evaluate carefully whether a decision-level witness has potentially relevant information in an employment case. A blanket refusal to produce the witness for deposition could result in reversal of summary judgment if an appellate court determines that a deposition of the witness should have occurred.

Sean S. Kelly is an attorney with Ross, Brittain & Schonberg Co. LPA, the Worklaw® Network member firm in Cleveland.



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