A view of the judge's chair in a court room. REUTERS/Chip East

(Reuters) - Perhaps the third time will prove to be a charm for the 5th U.S. Circuit Court of Appeals and a Houston judge who has received two previous admonitions over his handling of employment discrimination cases.

The appeals court vacated U.S. District Judge Lynn Hughes’ grant of summary judgment to ambulatory care center operator KS Management Services LLC, ruling that Hughes abused his discretion by refusing to permit plaintiff Dana Bailey to conduct depositions to support her age discrimination claim. Judges Edith Jones, Leslie Southwick and Andy Oldham also reversed Hughes’s order denying discovery to Bailey.

The Bailey decision, as the 5th Circuit said in the very first paragraph of its per curiam opinion, is the third decision in which the appeals court has overturned Hughes for denying discovery to the plaintiff in a discrimination suit, following 2017’s McCoy v. Energy XXI GOM, LLC and 2021’s Miller v. Sam Houston State University.

“It is “déjà vu all over again,” the 5th Circuit said, quoting Yogi Berra. “And we reverse. Again. But we trust that the district court will heed the Federal Rules and the mandates of our precedent.”

Bailey’s lawyers at the Villa Law Firm also asked the 5th Circuit to reassign her case to a new judge. Such reassignments, as I’ve written, are extraordinarily rare – but not, unfortunately, for Hughes. My Reuters colleague Mike Scarcella noted last month, in a piece about the appellate revival of a big debit card antitrust case dismissed by Hughes, that the 5th Circuit has ordered at least five cases originally overseen by Hughes to be transferred to a different judge for remanded proceedings.

Bailey’s counsel argued that even though Hughes had not made overtly prejudicial statements about their client’s case – in contrast to the judge's conduct in the employment discrimination case reversed by the 5th Circuit in 2021 – Hughes’s “persistent and seemingly arbitrary denials of Bailey’s requests for adequate discovery” were reason enough to take the case away from him.

The appeals court disagreed. The 5th Circuit said the plaintiff's lawyers had not shown that the trial judge would be unfair to their client on remand or that his impartiality could reasonably be questioned.

In an email statement, Bailey counsel Matthew Swiger said he was nevertheless pleased with the appellate decision. “We look forward to productive resolution for our client,” he said.

Hughes did not respond to my detailed email query or to a detailed phone inquiry I left with his courtroom staff.

One of the questions I asked Hughes in my unrequited email was whether his peremptory discovery denials actually subvert the quick resolution of unwarranted employment lawsuits, which I presume to be his intention.

Look, after all, at what has happened to KS Management, known as Kelsey, in this case. Sure, Kelsey won a quick summary judgment ruling from Hughes without having to defend a single deposition. But now it’s going back to Hughes for a do-over, with the 5th Circuit looking over the trial judge’s shoulder.

Kelsey counsel Jill Panagos of Crain Caton & James agreed in a phone interview that “it could be” that the judge’s discovery rules end up undermining his intentions. (Panagos, to be clear, is a staunch supporter and old friend of Hughes, whom she describes as “a delightful man and a good friend to me.”)

Panagos said Hughes obviously has broad discretion to make the rules in his own courtroom. She said she has defended employers in hundreds of appearances before Hughes, who almost always calls for the same limited-discovery protocols. “He didn’t do anything untoward,” she said. “I truly believe that in his mind, he thinks he is being helpful.”

But during the litigation before Hughes, Panagos’s client, Kelsey, took a less draconian position on Bailey’s discovery requests than the judge, as the company acknowledged in its 5th Circuit brief. Under what the 5th Circuit described as his “rough justice” rules for employment cases, including the Bailey case, Hughes requires both sides initially to produce certain documents, including the worker’s emails and a list of potentially corroborating witnesses. They must also jointly produce an “objective, factual” chronology of the worker’s employment history. (“Legal posturing, abstractions and quibbling will be crushed,” Hughes's orders state.)

After this limited discovery, employers can move for summary judgment. Kelsey did so, arguing that Bailey was fired not because she is in her late 50s but because she made mistakes in administering medication to patients. Bailey, meanwhile, contended that the company trumped up these rationales – and that she needed to conduct depositions to back her account.

Hughes said that she was not entitled to any discovery beyond the initial disclosures until after she was deposed, but neither side sought to depose the plaintiff.

As Bailey’s counsel filed motions to depose Kelsey witnesses, Kelsey seemed willing to allow the discovery to take place. “Having nothing to hide and firmly believing its actions warranted, Kelsey did not oppose Plaintiff’s Rule 56(d) motions to depose additional witnesses,” the company said in its 5th Circuit brief.

Kelsey’s brief even referred to Hughes’s seemingly “harsh treatment” of Bailey’s discovery requests, though the company argued that Bailey had misrepresented the documentation it previously produced and that the former nurse wouldn’t be able to survive summary judgment even if her lawyers were permitted to conduct the depositions they sought.

Bailey and her former employer will now get the chance to see if Kelsey is right about that – after losing a year of time and undisclosed costs in the appeal of Hughes’s discovery and summary judgment orders.

For the sake of both plaintiffs and defendants in employment discrimination cases, fingers crossed that this time, Hughes gets the 5th Circuit’s message.

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Our Standards: The Thomson Reuters Trust Principles.

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.

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