Thomas v. International Business Machines, 93-6062

• Decision Date: 21 February 1995
• Docket Number: No. 93-6062,93-6062
• Citation: 48 F.3d 478
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: 67 Fair Empl.Prac.Cas. (BNA) 270, 66 Empl. Prac. Dec. P 43,479, 31 Fed.R.Serv.3d 1403 Darlene THOMAS, Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINES, a New York corporation doing business in the State of Oklahoma, Defendant-Appellee.

Page 478

48 F.3d 478

67 Fair Empl.Prac.Cas. (BNA) 270,

66 Empl. Prac. Dec. P 43,479, 31 Fed.R.Serv.3d 1403

Darlene THOMAS, Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINES, a New York corporation

doing business in the State of Oklahoma, Defendant-Appellee.

No. 93-6062.

United States Court of Appeals, Tenth Circuit.

Feb. 21, 1995.

Lewis Barber, Jr. and Guinise M. Marshall of Barber & Marshall, P.A., Oklahoma City, OK, for plaintiff-appellant.

Jeffrey G. Huvelle and Thomasenia P. Duncan of Covington & Burling, Washington, DC, and Mona S. Lambird and Carolyn Gregg Hill of Andrews Davis Legg Bixler Milsten & Price, Oklahoma City, OK, and Douglas G. Vetter of IBM Corp., Somers, NY, for defendant-appellee.

Before MOORE and EBEL, Circuit Judges, and VRATIL, District Judge. ^*

EBEL, Circuit Judge.

Plaintiff-Appellant Darlene Thomas ("Thomas"), an employee of Defendant-Appellee International Business Machines Corporation ("IBM"), appeals the district court's summary judgment dismissal of her claim that IBM violated the Age Discrimination in Employment Act ("ADEA"), codified as amended at 29 U.S.C. Secs. 621-634. Thomas also appeals the court's grant of IBM's motion for a protective order to relieve John F. Akers, Chairman of the Board of Directors of IBM, from the necessity of complying with Thomas' notice to take deposition. We affirm. ¹

I. Background

Since 1979, Thomas has performed clerical and administrative duties in IBM's Oklahoma City office. In early 1990, IBM merged the Oklahoma City National Service Division, where Thomas had worked under the supervision of Dorothy Warren ("Warren"), into the Marketing Branch. In the Marketing Branch, Thomas' new direct supervisor was Mark Beck ("Beck"), who in turn reported to Dan Aleto ("Aleto"), the branch operations manager.

Before Thomas was hired, IBM implemented an employee performance rating system pursuant to which each employee received an annual written evaluation that included a performance score between 1 and 5. An employee who "far exceeds" expectations receives a "1," whereas a "5" reflects unsatisfactory performance, and a "4" means that the employee has met his or her requirements, and no more. During her thirteen-year tenure with IBM, Thomas has never received an annual performance rating of "1" or "2," but also never received a "5."

In May 1991, Aleto ranked the thirty-three administrative employees in the Marketing Branch according to their "relative contribution to IBM's business." A critical component of Aleto's evaluation was each employee's most recent performance rating. IBM admonished employees that if they received a performance rating of "4" and a low rank vis-a-vis their colleagues, their positions would be at risk. A 1991 company memo entitled "Determining Employee Contribution in IBM" informed employees that the ranking was precipitated by IBM's aim to enhance its performance in what had become a keenly competitive computer market. In his evaluation of Thomas' department, Aleto ranked Thomas thirtieth out of thirty-three, which placed her in the bottom quartile. Among all the employees included in this May 1991 ranking of her department, only Thomas and two others had never received a ranking of "1" or "2."

Just two months later in July 1991, Beck completed his annual review of Thomas and evaluated her performance at level "4." In April 1992, Thomas again received a "4" rating in her annual review. This time Warren, who had replaced Beck as Thomas' supervisor, conducted the evaluation.

Also during the early 1990s, IBM instituted a voluntary separation incentive program known as Individual Transition Options ("ITO"). Pursuant to ITO, IBM offered employees the opportunity to retire and receive a severance payment based on their length of service and salary level. Alternatively, the program allowed employees not yet eligible for retirement to take an unpaid leave of absence for up to eight years, during which time they would accrue service credits toward retirement and enjoy coverage under IBM's medical plan. IBM offered ITO to all employees, regardless of age.

Between June 1991 and May 1992, Thomas' supervisors periodically encouraged her to pursue the ITO program because IBM was contemplating a reduction in the number of administrative employees in its Oklahoma City office. Although Thomas knew that her undistinguished performance evaluations and ranking placed her job at risk, she nonetheless opted to remain at IBM and is today one of thirteen administrative employees in the Oklahoma City office.

On May 12, 1992, Thomas commenced this action, alleging the following federal and state law claims: (1) IBM violated the ADEA by giving her undeservedly low performance evaluations in order to coerce her to resign under the ITO program; (2) IBM engaged in intentional infliction of emotional distress; and (3) IBM committed fraud and deceit in its evaluations of her performance.

After the parties conducted written discovery and exchanged witness and exhibit lists, they filed myriad pretrial motions between November 1992 and January 1993. The two critical motions for this appeal are IBM's motion on December 4, 1992 for a protective order to relieve IBM Chairman Akers from complying with Thomas' notice to take his deposition and IBM's December 14, 1992 motion for summary judgment. On December 8, 1992, the court granted IBM's motion for a protective order to block the Akers deposition and subsequently denied Thomas' two motions for reconsideration. After ruling on numerous additional motions to compel and extend discovery, the court granted summary judgment in favor of IBM on all claims on January 20, 1993.

In this appeal, Thomas contends that the court abused its discretion in preventing the Akers deposition and that genuine issues of material fact preclude summary judgment in favor of IBM on the ADEA claim. ²

II. Discussion

A. The Protective Order to Block the Akers Deposition

Because the decision to grant a protective order under Fed.R.Civ.P. 26(c) is vested in the district court's discretion, we will only reverse the court's ruling if that discretion was abused. ³ Wang v. Hsu, 919 F.2d 130, 130 (10th Cir.1990). Under the abuse of discretion standard, we will not disturb a trial court's decision absent "a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986).

To place the district court's grant of IBM's protective order in proper perspective, we briefly review what transpired prior to its ruling. Thomas filed her complaint on May 12, 1992 and IBM filed its answer on June 4, 1992. In a pretrial conference in early July, the court scheduled discovery to end on December 1, 1992 and set trial for January 1993. On November 16, 1992, IBM and Thomas filed a joint application to extend the discovery deadline and the trial date. On November 17, 1992, the court denied this application. On November 24, 1992, the court granted IBM's counsel's request to withdraw from the case. The next day, new IBM counsel entered an appearance and requested both a ten-day extension in the discovery deadline and permission to file a summary judgment motion on December 17, 1992; counsel did not request an extension in the trial date. On November 30, 1992, the court granted this discovery extension, but required all summary judgment motions to be filed on December 14, 1992. On December 1, 1992, Thomas also requested a ten-day discovery extension, which the court granted that same day. ⁴ Also on December 1st, Thomas gave notice in violation of Local Rule 15(A) to depose Akers in Oklahoma City on December 7th, fewer than five business days later. IBM responded on December 4th with its motion for a protective order. On December 4th, Thomas served IBM with a second deposition notice and also requested the court to waive the five-day notice requirement in Local Rule 15(A). On December 8th, the court granted IBM's motion for a protective order.

We conclude that the record amply supports the court's protective order. First, Thomas does not dispute that her notice to depose Akers in Oklahoma City on December 7th violated the court's Local Rule 15(A), which requires opposing counsel to give five-days notice to deponents who are outside the jurisdiction. Additionally, Thomas' notice to conduct the deposition in Oklahoma City clashes with the normal procedure that the "deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business." 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil Sec. 2112 at 81 (1994) (citations omitted).

Thomas attempts to justify her deposition request by arguing that the lack of adequate notice arose from the court's expedited discovery schedule and that Akers would not be inconvenienced by traveling to IBM's Oklahoma City office. However, noticeably absent from Thomas' opposition to IBM's protective order motion is any explanation as to why she waited until December 1st to set the deposition date and why her counsel could not have conducted the deposition at IBM's principal place of business in White Plains, New York. Indeed, the district court noted that Thomas not only waited until after the expiration of the original discovery deadline to give notice of Akers' deposition, but also had not taken the deposition of any other IBM personnel.

Furthermore, IBM submitted an affidavit from Akers in which he testified that he lacked personal knowledge of Thomas and was unaware of her age, her performance ranking, any work evaluations that she might have received, or that she even worked for IBM. ⁵ See Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 218 (6th Cir.1989) (upholding district court's exercise of discretion in granting protective order to bar plaintiffs from...