United States District Court, S.D. Ohio, Western Division
L. Litkovitz United States Magistrate Judge
Rebeca Santiago, a former machine operator at defendant Meyer
Tool, Inc., brings this action alleging violations of the
Americans with Disabilities Act, 42 U.S.C. § 12101
et seq., the Equal Pay Act, 29 U.S.C. §
206(d)(1), and the Family Medical Leave Act, 29 U.S.C. §
2601 et seq., as well as various state law statutes.
This matter is before the Court on plaintiffs motion to quash
defendant's subpoenas to Belcan, LLC and Belflex Staffing
Network (Doc. 50), which seek the "[e]ntire employment
file of the plaintiff, Rebecca Santiago" (Doc. 52), and
defendant's response in opposition (Doc. 61). This matter
is also before the Court on plaintiffs motion for a
protective order. (Doc. 67). The Court held a status
conference in this matter on January 9, 2020 and heard
additional arguments from the parties on the motion to quash.
moves to quash the subpoenas sent by defendant to Belcan, LLC
and Belflex Staffing Network-employers of plaintiff after she
was terminated by Meyer Tool-contending that information
relating to her work performance at subsequent jobs is
irrelevant and beyond the scope of permissible discovery.
(Doc. 50 at 1, 5). Plaintiff argues that the only relevant
evidence in this case is what Meyer Tool knew at the time it
terminated her employment. (Id. at 2). Plaintiff
argues that defendant's request for employment
performance records seeks impermissible character evidence
under Federal Rule of Evidence 404(a). (Id. at 5).
Plaintiff further argues that defendant's subpoenas
amount to a "fishing expedition" in the hopes of
finding performance deficiencies or attendance issues similar
to those alleged by defendant to justify plaintiffs
termination. (Id.). In the event the Court declines
to quash the subpoena, plaintiff seeks to the limit the
information sought in the subpoenas to plaintiffs
post-termination earnings records. (Id. at 6).
alleges that the evidence it seeks from Belcan and Belflex
regarding plaintiffs termination from those jobs after she
left Meyer Tool is relevant to: (1) the issues of mitigation
of damages and backpay, and (2) to plaintiffs performance at
Belcan and Belflex, which may corroborate defendant's
stated basis for terminating plaintiffs employment, i.e.,
producing nonconforming parts. (Id. Doc. 61 at 2-3,
6). Defendant alleges that plaintiff has a duty to mitigate
her damages in this employment discrimination case, and it
bears the burden of proof on this affirmative defense. (Doc.
61 at 1, citing Rasimas v. Michigan Dept. of Mental
Health, 714 F.2d 614, 624 (6th Cir. 1983)). Defendant
contends that if plaintiff is directly responsible for losing
her subsequent employment, she "effectively remove[d]
herself from the job market for purposes of receiving
backpay." (Id. at 3) (citing Patterson v.
P.H.P. Healthcare Corp., 90 F.3d 927, 937 (5th Cir.
party seeking to quash the subpoena, plaintiff bears the
burden of showing the discovery sought is overly broad,
unduly burdensome, or not relevant. Hendricks v. Total
Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio
2011). "Rule 45 does not list irrelevance or overbreadth
as reasons for quashing a subpoena. Courts, however, have
held that the scope of discovery under a subpoena is the same
as the scope of discovery under Rule 26." Id.
(quoting Barrington v. Mortgage IT, Inc., No.
07-61304, 2007 WL 4370647, at *3 (S.D. Fla. Dec. 10, 2007)).
Under the federal rules, parties may obtain discovery
regarding any nonprivileged matter that is relevant to a
party's claim or defense, regardless of whether the
information sought is admissible, that is "proportional
to the needs of the case." Fed.R.Civ.P. 26(b)(1). The
Court must determine whether the subpoena requests are overly
broad or seek irrelevant information under the same standards
set forth in Rule 26(b) and as applied to Rule 34 requests
for production. Hendricks, 275 F.R.D. at 253 (citing
Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D.
588, 591 (D. Kan. 2003)).
case, defendant presents as an affirmative defense that
plaintiff failed to mitigate her damages. (Doc. 8 at 13). In
employment discrimination cases, once the plaintiff presents
evidence on the issue of damages, "the burden of
producing sufficient evidence to establish the amount of
interim earnings or lack of diligence shifts to the
defendant." Rasimas v. Michigan Dep 't of Mental
Health, 714 F.2d 614, 623 (6th Cir. 1983) (internal
citations omitted). Thus, records and documents related to
plaintiffs compensation and benefits at her subsequent places
of employment are relevant to the issue of mitigation of
damages. See Thurman v. Yellow Freight Systems,
Inc., 90 F.3d 1160, 1168 (6th Cir. 1996) (plaintiff has
duty to mitigate damages by seeking suitable employment with
reasonable diligence). Here, plaintiffs post-termination
earnings records are relevant to the issue of mitigation of
damages and specifically the amount that plaintiff could have
earned with reasonable diligence. Hite v. Peters,
No. CIV.07-4492, 2009 WL 1748860, at *4 (D. N.J. June 19,
2009); Zeller v. S. Cent. Emergency Med. Servs.,
Inc., No. 1:13-cv-2584, 2014 WL 2094340, at *5 (M.D. Pa.
May 20, 2014).
addition, courts have recognized that employment records
other than those related to earnings may also be relevant to
the issue of mitigation and damages under the circumstances
of a particular case. See, e.g., Stewart v. Orion Federal
Credit Union, 285 F.R.D. 395, 399 (W.D. Tenn. 2012);
Noble v. Ruby Tuesdays Restaurants, Inc., No.
2:06-cv-259, 2007 WL 3125131, at *2 (S.D. Ohio Oct. 23,
2007); Levitin v. Nationwide Mut. Ins. Co., No.
2:12-cv-34, 2012 WL 6552814, at *4 (S.D. Ohio Dec. 14, 2012).
In this case, records relating to the reasons for plaintiffs
termination from employment subsequent to Meyer Tool are
relevant to the mitigation of damages issue and backpay.
employer's liability for backpay may be tolled where the
plaintiffs loss of subsequent employment is deemed
"willful." Thurman, 90 F.3d at 1168. In
Thurman, the Sixth Circuit explained:
A plaintiff has a duty to mitigate his damages by seeking
suitable employment with reasonable diligence. 42 U.S.C.
§ 2000e 5(g); Ford Motor Co. v. E.E.O.C, 458
U.S. 219, 232 (1982); Whatley v. Skaggs Companies,
Inc., 707 F.2d 1129, 1138 (10th Cir.), cert,
denied, 464 U.S. 938 (1983). If an employee suffers a
"wilful loss of earnings, '' however, the
employer's backpay liability is tolled. It is the
employer's burden to prove that backpay should be tolled.
N.L.R.B. v. Ryder System Inc., 983 F.2d 705, 712
(6th Cir. 1993).
In Ryder, an employer claimed backpay should be
tolled because the plaintiffs were fired for insubordination
and therefore suffered a wilful loss of earnings. The court
held, "[A] discharge from interim employment will toll
backpay liability only if the employee's misconduct was
'gross' or 'egregious.'" Id. at
713. Similarly, an employee's discharge for cause due to
his wilful violation of company rules will toll backpay.
Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269
(4th Cir. 1985).
Yellow Freight claims that Thurman failed to mitigate his
damages because Riggs Trucking Company, his subsequent
employer, fired him for cause. During his probationary period
at Riggs, Thurman drove a truck under an overpass that was
too low. As a result, he bent the exhaust pipe. Riggs
discharged him due to the accident. There was no evidence
that Thurman acted intentionally. Thus, Yellow Freight failed
to establish that Thurman acted wilfully or committed a gross
or egregious wrong. Backpay should not be tolled and the
district court is affirmed on this issue.
Thurman, 90 F.3d at 1168-69. Because a defendant may
seek to toll its liability for backpay where an
employee's termination from a subsequent employer was
"willful," the information defendant seeks on the
reasons for plaintiffs termination is relevant and
discoverable. To the extent documents or records reflecting
the reasons for plaintiffs termination also reference
plaintiffs performance reviews and/or disciplinary action,
these documents are discoverable. Therefore, defendant may
discover documents and employment records reflecting
plaintiffs earnings and reasons for termination in her
employment with Belcan and Belflex.
has not shown that the information sought in the subpoenas to
Belcan, LLC and Belflex Staffing Network is overly broad,
unduly burdensome, or not relevant. Plaintiffs citation to
Williams v. United States Envtl. Servs., LLC, No. CV
15-168, 2016 WL 684607, at *6 (M.D. La. Feb. 18, 2016) as
demonstrating that "the only evidence that is relevant
is evidence of what Meyer Tool knew at the time it decided to
terminate plaintiffs employment" is unpersuasive and
based on a selective reading of that case. The court in
Williams held that information related to plaintiff
spast employment, including evidence of plaintiff s
earnings, work performance, or qualifications, was irrelevant
and beyond the scope of permissible discovery. Id.
at *5, *7. In contrast, the court held that evidence of the
plaintiffs current position's "promotional
opportunities, compensation, job responsibilities, working
conditions, and status" was relevant to the issue of