Burgard v. International Business Machines Corporation

Background

Cheryl Burgard brought this case against International Business Machines Corporation, asserting claims including failure to pay overtime wages under the Fair Labor Standards Act (FLSA). Other current or former IBM Executive Assistants later joined the case. The three plaintiffs addressed in this order were MaryBeth Acocella, Bernadette Ocampos Romero, and Ellen Rosner.

Discovery dispute

IBM reported that the three opt-in plaintiffs had not provided deposition dates for more than three months, had not verified their interrogatory answers for more than five months, and had produced no documents. The plaintiffs did not dispute those failures.

On April 7, 2025, the court granted IBM’s earlier request for discovery-related sanctions under Federal Rules of Civil Procedure 37 and 41. The court ordered the three plaintiffs to respond to IBM’s discovery requests, serve verified interrogatory answers, produce responsive non-privileged documents, and attend depositions by April 15, 2025. The court expressly warned that failure to comply strictly would result in dismissal of their FLSA claims with prejudice.

IBM then moved to dismiss those claims with prejudice. In response, the plaintiffs did not contest that they had failed to respond to the discovery requests or attend depositions. Their counsel stated that the plaintiffs did not want to attend depositions because they feared retaliation.

Court’s reasoning

Federal Rule of Civil Procedure 37 allows a court to dismiss all or part of an action when a party fails to obey a discovery order. The court considered the factors identified by the U.S. Court of Appeals for the Second Circuit: whether the failure was willful, whether lesser sanctions would work, how long the failure lasted, and whether the party was warned about the consequences.

The court found that the plaintiffs’ noncompliance was willful because their counsel confirmed that they had intentionally chosen not to participate in discovery. The court said that fear of retaliation did not excuse refusing depositions or other discovery obligations, noting that the FLSA protects against retaliation. The court also found that the plaintiffs had failed to comply for more than five months, had received an explicit warning, and had categorically refused to meet their obligations. It concluded that a lesser sanction would not be sufficient.

Ruling

Judge Philip M. Halpern granted IBM’s motion. The FLSA claims of MaryBeth Acocella, Bernadette Ocampos Romero, and Ellen Rosner were dismissed with prejudice. The clerk was directed to terminate IBM’s pending letter-motion. The opinion does not state that Burgard’s claims or the claims of other opt-in plaintiffs were dismissed by this order.