SHERITA BURSE, Plaintiff, v. DETROIT PUBLIC SCHOOLS COMMUNITY DISTRICT, Defendant Case No. 23-cv-11072 United States District Court, E.D. Michigan, Southern Division Filed August 13, 2024 Stafford, Elizabeth A., United States Magistrate Judge REPORT AND RECOMMENDATION TO GRANT IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT (ECF NO. 21) I. Introduction *1 Plaintiff Sherita Burse moves for default judgment or other sanctions against Defendant Detroit Public Schools Community District (DPS) for violating discovery orders. ECF No. 21. The Honorable Shalina D. Kumar referred all discovery matters to the undersigned under 28 U.S.C. § 636(b). ECF No. 11. The Court held hearings on June 25 and August 1, 2024 and now RECOMMENDS that Burse's motion be GRANTED IN PART. II. Background A. Burse claims in her May 2023 complaint that DPS violated her rights under the American with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act (RA), 29 U.S.C. § 794 et seq.; and Michigan's Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1101 et seq. ECF No. 1. She says that she began working at DPS in 2017 and taught remotely during the COVID-19 pandemic. In July 2021, when DPS was preparing to return to mostly in-person learning, Burse requested that DPS assign her to the Virtual School as an accommodation of her disabilities. Id., PageID.4. She claimed to suffer from severe agoraphobia, depression, anxiety, and asthma. Id., PageID.3. Although Burse was transferred to the Virtual School, DPS made no decision on her request for accommodation of her disabilities. Id., PageID.4. She received a “highly effective” performance rating for her work at the Virtual School during the 2021-2022 school year, but she was disciplined for not being present at the Virtual School's building. Id., PageID.4-5. DPS retracted the discipline on June 17, 2021, after Burse filed a charge of unlawful disability discrimination with the EEOC. Id., PageID.5. Ten days later, on June 27, 2021, DPS terminated her assignment to the Virtual School, citing decreased enrollment at the school. Id. Burse requested that DPS keep her assigned to the Virtual School as a reasonable accommodation, but DPS denied that request and assigned her to Bagley Elementary School for the 2022-2023 school year. Id., PageID.5-6. Burse claims that DPS assigned other less senior teachers to the Virtual School, including some who were new to DPS. Id. Burse claims that she could not perform the essential functions of her job for her in-person position at Bagley, so she has been unable to continue teaching at DPS. Id., PageID.6. B. In August 2023, Burse served interrogatories and requests for production on DPS. ECF No. 21-2; ECF No. 21-3. DPS did not timely respond. In November 2023, the Court entered a stipulated order compelling DPS to “provide full and complete answers” to Burse's discovery requests within one week. ECF No. 14. DPS did not respond to the requests until December 2023. ECF No. 21, PageID.96; ECF No. 21-8. DPS supplemented its responses several times in April and May 2024. ECF No. 21-9; ECF No. 21-10; ECF No. 21-11; ECF No. 21-12; ECF No. 21-13. But DPS's responses were still incomplete, so Burse moved for default judgment. ECF No. 21. Burse was especially concerned about DPS's reasons for denying Burse's application to continue working for the virtual school program and denial of her request for a reasonable accommodation to teach remotely. ECF No. 21, PageID.90-91. Burse asked in Interrogatory No. 5 for DPS to “disclose the full and complete basis/bases for defendant's decision to not assign and/or allow plaintiff to work as a school teacher in its Virtual School program for the 2022-2023 school year (and each successive year).” ECF No. 29-3, PageID.379. Burse elaborated that she wanted “[t]he specific reason(s) for why defendant did not assign and/or allow plaintiff to work as a school teacher in its Virtual School program during the referenced period(s)” and “[t]he full, specific and complete factual bases for the decision to not assign and/or allow plaintiff to work as a school teacher in its Virtual School program during the referenced period(s).” Id. *2 DPS stated in its discovery responses that Burse “was offered a position as [a] teacher at the Virtual School for the 2022-2023 school year. She refused that offer.” ECF No. 21-8, PageID.184. But DPS admitted during the June 25th hearing that it lacked records supporting that assertion. DPS later disclosed an email from July 2022 identifying Burse as one of the displaced teachers for the next school year, undermining DPS's claim that Burse was offered a position at the Virtual School for the 2022-2023 school year. ECF No. 29-4, PageID.384. And as Burse explained in her motion, DPS had not answered why she “in particular” was selected for displacement from the Virtual School: Defendant has limited its disclosure to the reason for why some teachers in general were reassigned to in-person teaching positions from the Virtual School (i.e., a decrease in enrollment in the program). But, it has steadfastly refused to disclose why plaintiff, in particular, was selected to be removed from and never again assigned to teach in the Virtual School program – which is the crux of this case. ECF No. 21, PageID.90-91 (emphasis in original). DPS had neither answered an interrogatory about why Burse was not among the teachers selected for assignment at the Virtual School nor produced any documents that would address that question. At the June 25th hearing, DPS offered affidavits from Benjamin Jackson and Aisha Greene, heads of DPS's human resources department, stating that they performed “diligent and thorough” searches but could not locate any record that Burse either applied or interviewed for a position at the virtual school for the 2022-2023 school year. Those affidavits contradicted a June 2022 email to Burse from the principal of the Virtual School, Philip Van Hooks, thanking her for her interest in the Virtual School but stating that Burse was not selected to be on staff. Philip VanHooks <philip.vanhooks@detroitk12.org> Mon 6/27/2022 9:12 PM Thank you for your interest in the Virtual School for the 2022/2023 school year. As has been shared several times, the Virtual School is anticipated to have a much smaller enrollment for 2022-2023 and as such all staff were asked to complete an application and reinterview for their roles. You have not been selected to be on staff at the DPSCD Virtual School based on our current enrollment projections, however, if enrollment changes, we may reach out to this summer for an assignment in 2022-2023. Rest assured that while you will not be at the DPSCD Virtual School next year, your employment with DPSCD is guaranteed and you will be assigned to a new location and assignment for which you are qualified. It is recommended that you now take advantage of the transfer request process. All DFT-related employees are eligible to request a transfer to up to three (3) different schools within the district during the transfer window. The window opened April 1st and will close July 15th. Here is a link to the hub site with more information. If you do not take part in the open transfer period, you will be placed into a vacancy for the 2022/2023 school year. If you have questions about the transfer process or would like to speak with Human Resources about finalizing a new assignment for 2022-2023 reach out to recruitment@detroitk12.org. Thank you for your continued commitment to the students of the Detroit Public School Community District. Philip T. Van Hooks, Principal DPSCD Virtual School 14771 Mansfield Detroit, Ml 48227 ECF No. 26-2, PageID.348. Counsel for DPS said during the hearing that it had no record of this email because Van Hooks is no longer employed at DPS and it did not archive his emails. *3 The Court found not credible DPS's representations that it conducted diligent searches of its records and that Van Hooks' email account was inaccessible. Jackson's and Greene's affidavits were conclusory, and defense counsel admitted that they are not IT specialists familiar with retrieving electronic data from network servers. See Waskul v. Washtenaw Cnty. Cmty. Mental Health, 569 F. Supp. 3d 626, 636 (E.D. Mich. 2021) (describing parties' obligation to designate an e-discovery liaison who is “knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology.”) (cleaned up).[1] Thus, DPS had not discharged its obligation under Federal Rule of Civil Procedure 26(g) to provide complete and correct discovery responses after making a reasonably inquiry. After the June 25th hearing, the Court entered an order giving DPS the chance to remedy the deficiencies in their discovery responses: By July 12, 2024, DPS must engage a specialist in electronic data retrieval to locate internal emails and other documents reflecting (1) DPS's reasons for not selecting Burse to teach in the virtual school for the 2022-2023 school year; (2) its denial of Burse's request for a reasonable accommodation to teach remotely; (3) why Burse was not selected for vacancies in the virtual school in later years; and (4) Burse's alleged rejection of an offer of employment at the virtual school. ECF No. 28, PageID.366. DPS also had to file a memorandum with an affidavit from the IT specialist detailing the efforts made to locate those documents, including emails from Van Hooks' email account. Id. The Court further ordered, “If DPS still maintains that Van Hook's email account is inaccessible, the affidavit must specify when he left the district and what happened to the data from his email account after he left.” Id. And because of the conflicting accounts of why Burse was not selected for the virtual school, the Court ordered DPS to “include in its memorandum supplemental responses to Burse's interrogatories about DPS's reasoning.” Id. The Court then warned DPS “that it may be sanctioned with a default judgment or other case-altering sanctions if it fails to correct the deficiencies in its discovery responses or to fully comply with this order.” Id., PageID.366-367. C. DPS's supplemental briefing and affidavit did not comply with this Court's order. ECF No. 29. DPS claimed that Information Technology Server Engineer Dainquan Wang “conducted a diligent search for the information” required by the order; DPS submitted Wang's affidavit in support. Id., PageID.369; ECF No. 29-2, PageID.373-376. But neither DPS's supplemental brief nor Wang's affidavit said anything about whether the data in Van Hooks' email account was accessible. Id. Those documents also failed to describe what steps Wang undertook to recover Van Hooks' email account. Id. Nor did DPS specify when Van Hooks left the district or describe what happened to the data in his email account. Id. And DPS's supplemental responses to the interrogatories still provided no answer to why Burse was not among the teachers chosen to remain at the Virtual School. ECF No. 29-3, PageID.379. Rather, DPS repeated that Burse was reassigned because of the decreased enrollment in the Virtual School and that she was reassigned “pursuant to the Detroit Federation of Teachers (‘DFT’) Collective Bargaining Unit (‘CBA’).” Id. This answer explains in general why some teachers had to be reassigned from the Virtual School, but not why Burse in particular was chosen for reassignment. *4 At the August 1st hearing, the Court asked counsel for DPS why Burse was chosen for reassignment, emphasizing that DPS must have had a process for choosing which teachers to reassign from the Virtual School. After repeated questioning, counsel for DPS finally said that Burse was chosen for reassignment because of her reduced class size in the Virtual School and the need for a teacher with her certification at Bagley.[2] DPS's counsel admitted—again, after repeated questioning during the hearing—that DPS had not provided this explanation for the decision to reassign Burse in any of its discovery responses. Even so, it argued that Burse could have discovered more information by deposing witnesses DPS identified as taking part in the decision to reassign her. But DPS was also evasive when responding to the portion of Interrogatory No. 5 asking about the identity of decisionmakers. In that interrogatory, Burse asked for “[t]he name, job title, employer and address of each person who participated in the decision” to not assign her to the Virtual School and “[t]he role each person...played in the decision.” ECF No. 21-8, PageID.183. DPS responded by referring to the answer of an earlier interrogatory that identified the FMLA/leave manager and an assistant superintendent of human resources, who DPS described as having reviewed her request for an accommodation. Id., PageID.181, 183-184. In response to another interrogatory that asked DPS to describe the subject matter of its witnesses' expected testimony, it identified no witness who would testify about the decision to not assign Burse to the Virtual School except to again identify the FMLA/leave manager. ECF No. 21-9, PageID.196. DPS pointed to no interrogatory answer that specified witnesses could testify about the reasons why Burse was chosen to be one of the teachers who was displaced from the Virtual School. Burse's counsel complained that he had no chance to conduct discovery about DPS's newly revealed contention that she was displaced because of her small class size at the Virtual School and the need for a teacher with her certification at Bagley. Discovery closed on July 11, 2024, before the August 12, 2024 dispositive motions deadline. See ECF No. 19. Burse thus argued that the Court should enter a default judgment in her favor on her retaliation claim as a sanction for DPS violating the stipulated order compelling DPS to “provide full and complete answers” to Burse's discovery requests within one week, and the July 2024 order requiring DPS to supplement its responses to the discovery requests. ECF No. 14; ECF No. 28. Burse asserted that, if a default judgment is not entered, discovery should be reopened. III. Analysis A. When a party violates a discovery order, the court may impose sanctions that include: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). Although entry of default judgment is a drastic measure, the district court does not abuse its discretion in entering a default judgment to punish a party for “egregious conduct and to deter other litigants who might be tempted to make a mockery of the discovery process.” Grange Mut. Cas. Co. v. Mack, 270 F. App'x 372, 378 (6th Cir. 2008). *5 When determining whether a default judgment should be entered, courts consider four factors in this analysis: 1) whether the disobedient party acted in willful bad faith; 2) whether the opposing party suffered prejudice; 3) whether the court warned the disobedient party that failure to cooperate could result in a default judgment; and 4) whether less drastic sanctions were imposed or considered. KCI USA, Inc. v. Healthcare Essentials, Inc., 801 F. App'x 928, 934 (6th Cir. 2020). No one factor is dispositive, but the most important consideration is whether defendants “acted in willful bad faith.” Id. Default judgment is proper when “no alternative sanction would protect the integrity of the pre-trial procedures.” Buck v. U.S. Dep't of Agric., Farmers Home Admin., 960 F.2d 603, 608 (6th Cir. 1992) (cleaned up); see also State Farm Mut. Auto. Ins. Co. v. Max Rehab Physical Therapy, LLC, No. 18-13257, 2021 WL 2843832, at *5 (E.D. Mich. June 28, 2021), adopted, 2021 WL 3930133 (E.D. Mich. Sept. 2, 2021) (recommending default judgment after warnings and lesser sanctions failed to spur compliance with discovery orders). The Court address the relevant four factors below. B. Courts find willful bad faith when the party “display[s] either an intent to thwart judicial proceedings or a reckless disregard for the effect of his conduct on those proceedings.” Schafer v. City of Defiance Police Dept., 529 F.3d 731, 737 (6th Cir. 2008). The Court finds here that DPS thwarted these proceedings and showed a reckless disregard for the effect of its conduct on these proceedings. Even after the Court ordered DPS to supplement its responses to Interrogatory No. 5, it stuck to its evasive answers and referred only to the general reason why it reassigned teachers from the Virtual School. ECF No. 28, PageID.366; ECF No. 29-3, PageID.379. It still “steadfastly refused to disclose why plaintiff, in particular, was selected to be removed from and never again assigned to teach in the Virtual School program–which is the crux of this case,” as Burse had complained in her motion for default judgment. ECF No. 21, PageID.90-91. And Burse is right that DPS's reasons for selecting her for reassignment are key to her claim of retaliation. A prima facia case of retaliation under the ADA is met with a showing that “(1) the plaintiff engaged in activity protected under the ADA; (2) the employer knew of that activity; (3) the employer took an adverse action against plaintiff; and (4) there was a causal connection between the protected activity and the adverse action.” Rorrer v. City of Stow, 743 F.3d 1025, 1046 (6th Cir. 2014). If Burse's allegations are true, she would likely meet this “low hurdle.” Id. (cleaned up). Burse claims DPS knew that she filed an EEOC charge claiming disability discrimination, and she was displaced from the Virtual School ten days after DPS retracted the discipline in response to her EEOC charge. The EEOC charge was protected activity, and displacing Burse from the Virtual School is “materially adverse,” which for retaliation cases “means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Laster v. City of Kalamazoo, 746 F.3d 714, 730-31 (6th Cir. 2014) (cleaned up). And the ten-day span between DPS's discipline retraction and Burse's displacement is a “short timeframe fall[ing] into the bucket of cases where the Sixth Circuit has found temporal proximity alone is enough to establish causation.” Moody v. MidMichigan Med. Ctr. Midland, ___ F. Supp. 3d ___, 2023 WL 8374387, at *7 (E.D. Mich. Dec. 4, 2023). *6 If Burse satisfied her low-hurdle prima facie case of retaliation, the burden would shift to DPS “to produce evidence of a legitimate, nonretaliatory reason for its actions.” Id. at 8* (quoting Dulaney v. Flex Films (USA), Inc., No. 20-6098, 2021 WL 3719358, at *6 (6th Cir. Aug. 23, 2021)) (cleaned up). Burse would need to show that DPS's proffered reasons were a pretext for discrimination. Id. So as Burse argued, DPS's reasons for reassigning Burse are the crux of this case. But DPS steadfastly refused to explain its reasons, pointing only to the general reasons why it needed to reassign teachers from the Virtual School. DPS suggested that it need not provide straightforward answers in interrogatories because Burse could have deposed witnesses it identified. As noted, the Court saw no proof that DPS identified witnesses to testify about the reasons why Burse was among the teachers it chose for displacement from the Virtual School. But even if it had, DPS's effort to require Burse to discover the answers only through depositions would “defeat the utility of interrogatories.” United States v. Quebe, 321 F.R.D. 303, 310 (S.D. Ohio 2017) (cleaned up). Seeking information through Interrogatories is an efficient and cost-effective method of discovery and marshaling evidence for trial. Indeed, the Rules anticipate that it could lead to the discovery of evidence worthy of admission at trial. [Federal Rule of Civil Procedure] 33(c) provides that Interrogatory answers may be used at trial “to the extent permitted by the rules of evidence.” Deviating from the course prescribed by the Rules in any significant manner or way therefore negates the significant opportunity to introduce evidence through Interrogatories at trial. Id. (cleaned up). Throughout the discovery period, DPS persisted in providing evasive answers to interrogatories that thwarted Burse's effort to determine why she was displaced from the Virtual School. DPS either intended to prevaricate or showed a reckless disregard for the effect that its evasions had on these proceedings. And DPS ignored the Court's order to try to access the data from Van Hooks' email account and to explain what happened to that data after he left the district. Answers to Burse's questions about the decision to reassign her might have been found in Van Hooks' email account. And DPS's explanation of what happened to Van Hooks' email data would reveal whether it should be sanctioned under Rule 37(e) for failing to preserve electronically stored information. DPS's treatment of Van Hooks' email data and response to the Court's order have been reckless, at the very least. Thus, the first factor supports granting Burse's request for a default judgment. C. The prejudice factor also favors the entry of default judgment. “A party is prejudiced when it is unable to secure the information requested and required to waste time, money, and effort in pursuit of cooperation which the opposing party was legally obligated to provide.” Barron v. Univ. of Mich., 613 F. App'x 480, 485 (6th Cir. 2015) (cleaned up). During the entire discovery period, DPS stonewalled Burse's effort to discover why she was among the teachers who was displaced, so Burse has been prejudiced. And DPS has failed to produce Van Hooks' emails or explain what happened to them. “It is in cases like this one, where the obstruction prevented the other party from accessing evidence needed to bring the case, that default is most likely to be the appropriate sanction.” Grange Mut. Cas. Co. v. Mack, 270 F. App'x 372, 378 (6th Cir. 2008); see also, KCI, 801 F. App'x at 935. D. *7 The third factor addresses whether the Court warned defendants that failure their cooperate could lead to a default judgment. Although an earlier warning is relevant, it is not required when there is evidence of bad faith or contumacious conduct. Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997). DPS stubbornly refused to provide a straightforward explanation of why Burse was among the teachers chosen for displacement; its conduct has been contumacious. And when giving DPS a last chance to correct its deficiencies, the Court warned in its June 2024 order that DPS “may be sanctioned with a default judgment or other case-altering sanctions if it fails to correct the deficiencies in its discovery responses or to fully comply with this order.” ECF No. 28, PageID.367. DPS still failed again to explain its reasoning for not assigning Burse to the Virtual School and violated the portions of the order about Van Hooks' email account. Thus, the third factor also weighs in favor of a default judgment on the retaliation claim. E. The last factor—whether lesser sanctions have been imposed or considered—supports granting Burse's motion for default judgment. Because discovery has closed, it is too late for a lesser sanction to remedy the prejudice to Burse. And DPS squandered its chance to remedy its deficiencies after the Court entered the June 2024 order. Throughout the hearings, counsel for DPS failed to acknowledge the gravity of DPS's deficiencies in its discovery responses. Nor did she recognize the serious dereliction of DPS's duty to preserve and produce Van Hooks' email data. Default judgment is thus warranted to “deter other litigants who might be tempted to make a mockery of the discovery process.” Grange Mut. Cas. Co., 270 F. App'x at 378. And default judgment is the only sanction that “would protect the integrity of the pre-trial proceedings.” Buck, 960 F.2d at 608. IV. Conclusion The Court RECOMMENDS that Burse's motion for a default judgment be GRANTED IN PART. ECF No. 21. Burse should be granted default judgment against DPS on her retaliation claim. DPS should also be precluded from, at trial, relying on any evidence or explanations for its actions that should have been provided in response to discovery requests but were not. NOTICE TO PARTIES ABOUT OBJECTIONS Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed. R. Civ. P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2. Footnotes [1] See also Principle 2.02, Model Order Relating to the Discovery of Electronically Stored Information (ESI), United States District Court for the Eastern District of Michigan (Sept. 20, 2013), http://www.mied.uscourts.gov/PDFFIles/ModelESIDiscoveryOrderAndRule 26fChecklist.pdf (last viewed June 25, 2024). [2] Counsel's answer seems at odds with the July 2022 email from DPS's HR manager that identified the displaced teachers. ECF No. 29-4, PageID.384. That email said that the displaced teachers “will need a new assignment.” Id. So the email contradicts counsel's claim that Burse was displaced because she was needed at another school.