The opinion of the court was delivered by: Hogan, M.J.
The Court conducted an informal discovery conference today by telephone. Both parties are represented by experienced counsel. The Plaintiff, a 20 year employee of University Hospital, a member of the Defendant Health Alliance, was terminated in March, 2005. The termination letter indicated that the reasons were two: (1) absences on December 17 and 20, 2004 and from February 4-6, 2005 and (2) 6 instances, all occurring on February 26, 2005, where lab results were reported in an untimely manner. Plaintiff had been employed as a medical technologist. In the course of discovery, both parties encountered obstacles, which by this Order, we resolve today.
Plaintiff requested and Defendant refused to supply the disciplinary records of similarly situated employees for the last five years. Plaintiff's theory of the case is that her absences were protected by the Family Medical Leave Act. The Court agrees that the information requested should be produced, but in order to protect the privacy right of Defendant's employees, the disclosure should be made pursuant to a Protective Order.
Defendant made three discovery requests to Plaintiff and was met with a similar response as was Plaintiff when she came calling. The first was a request to produce income tax records from 2003 to the present. Despite the fact that Defendant has records to show how much it paid Plaintiff, there is the possibility of additional employment. The information requested is relevant to Plaintiff's claim for damages and her obligation to mitigate damages and must be produced.
Defendant's two other discovery requests are more difficult to evaluate. First, it seeks to have Plaintiff execute a medical release so it can access Plaintiff's employee health records. In a related request, it seeks to discover Plaintiff's medical records on the theory that Plaintiff has "opened the door" to such a request by asserting an FMLA claim. Defendant theorizes that Plaintiff has a problem with drugs, which problem explains or partially explains both her absences and performance problems. Since Plaintiff must establish that her absences resulted from a "serious health condition" as defined by the FMLA, the medical records, to the extent that they demonstrate a "serious health condition," must be disclosed. This does not mean that Plaintiff must disclose medical records, including those demonstrating a "serious health condition" for periods other than those listed in the termination letter as reasons for her dismissal.
There is no question that Plaintiff has the right to discharge employees who do not perform their jobs according to parameters set by the hospital. The Defendant, of course, may discipline its employees for dilatory and inaccurate lab reports. However, both these standards can be evaluated by objective criteria and the explanation for the dilatory and inaccurate reports is really unimportant, especially when viewed from the patient's perspective. On balance, there is a greater need to protect the privacy of medical records than to explain an employee's poor performance, the latter of which can be evaluated without the need for an underlying explanation.
In refusing to disclose medical records other than those directly related to the reasons for taking the leave which Plaintiff considers FMLA leave, Plaintiff has acted prudently.
Lastly, Defendant requests that Plaintiff produce all documents related to her pursuit of unemployment compensation. Plaintiff cited Section 4141.21, Ohio Revised Code, as the basis for her refusal. The cited code section goes beyond the question of admissibility and says that the information maintained by or furnished to the Director of Job and Family Services is for the exclusive use of the Department and shall not be used in any court in any action. The code section is quite broadly written and precludes, in the lowly magistrate's opinion, any use of the information Defendant seeks to have Plaintiff disclose. Thus, in the absence of any citation to the contrary, the Court refrains from issuing any Order requiring Plaintiff to disclose any unemployment compensation documents.
The informal cross-motions to compel are hereby resolved. Plaintiff's informal Motion is granted. Defendant's informal Motion is granted in part in accordance with this Order.
Timothy S. Hogan United States Magistrate Judge
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