Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parker v. Delmar Gardens of Lenexa, Inc.

United States District Court, D. Kansas

May 2, 2017

DELMAR GARDENS OF LENEXA, INC. dba Garden Villas of Lenexa, Defendant.


          GWYNNE E. BIRZER United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion to Quash Subpoena and for Protective Order (ECF No. 35). For the reasons set forth below, Plaintiff's motion is DENIED.

         I. Background[1]

         A. Nature of the Case

         Plaintiff Annette Parker is an African-American woman who was employed by defendant Delmar Gardens from June 1989 through November 17, 2015, as a dietary aide. Plaintiff's first fifteen years of employment passed without issue, until she first reported in July 2015 to the Administrator that the Caucasian evening employees were not cleaning properly and ensuring sufficient supplies. No action was taken on this report. Then, in September 2015, Plaintiff reported repeated incidences of sexual harassment by another employee. According to Plaintiff, Defendant failed to follow-up on her report. After Plaintiff's internal complaint, she received a disciplinary write-up for issues which allegedly occurred prior to her report of the harassment. Plaintiff then made a formal charge of sexual harassment, sex discrimination, and retaliation to the Equal Employment Opportunity Commission (“EEOC”).

         After Plaintiff's charge to the EEOC, Defendant advised her that a resident complained about a meal, assumedly related to her position as a dietary aide. As a result, on November 10, 2015, Defendant suspended Plaintiff's employment and terminated her one week later.

         Plaintiff brought this action against her former employer, claiming her termination was the result of discrimination on the basis of her sex and race, and/or in retaliation for engaging in protected activity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She also claims Defendant terminated her and unfairly disciplined her on the basis of her race and/or in retaliation for complaining about race discrimination in violation of 42 U.S.C. § 1981. Plaintiff seeks economic damages, including back-pay and front-pay, as well as compensatory damages for emotional distress, and punitive damages.

         On Defendant's motion, the Court dismissed Plaintiff's Title VII termination claims, but permitted her Title VII discrimination claims based on the September 2015 disciplinary write-ups to proceed, along with her § 1981 claims (see Mem. and Order, ECF No. 15).

         B. Procedural Posture

         Plaintiff filed this lawsuit on March 15, 2016 (ECF No. 1), and after resolution of its Motion to Dismiss, Defendants timely filed an Answer (ECF No. 21). A Scheduling Order was entered, establishing an initial discovery deadline of April 7, 2017 (ECF No. 23). After resolution of the dispositive motion and initial scheduling, both pleadings were amended (ECF Nos. 27, 28) and the parties agreed to revisions to the schedule (ECF No. 49). At the parties' joint request (ECF No. 54), due to the schedules of the attorneys, parties, and witnesses, the Court recently extended the discovery deadline to May 24, 2017 (ECF No. 56).

         II. Motion to Quash and for Protective Order (ECF No. 35)

         On December 13, 2016, Defendant served Plaintiff with notice of its intent to serve a subpoena duces tecum on Plaintiff's former employer, Sunrise Senior Living Services, Inc. (“Sunrise”), for whom she worked after her employment by Defendant.[2]This initial subpoena was served on Sunrise at its corporate headquarters in the Eastern[3]District of Virginia, and although the parties discussed Plaintiff's objections to that subpoena, no formal objection was filed in Virginia. The status of any information gained as a result of the Virginia subpoena is unknown.

         On January 5, 2017, Defendant notified Plaintiff of its intent to serve an identical subpoena on the same previous employer (albeit a slightly different name, Brighton Gardens Sunrise Senior Living) at its business address within the District of Kansas.[4]The Kansas subpoena has not been served. After conferring as required by D. Kan. Rule 37.2, [5] the parties could not resolve their disagreements regarding the subpoena, leading to the instant motion.

         A. Request at Issue

         The subpoena to Sunrise seeks: “All employment records for Annette Parker, including but not limited to her job application, job duties description, benefit records, payroll records, attendance/absenteeism, [and] termination.”

         B. Positions of the Parties

         Plaintiff does not dispute her income records, for the time period since her termination by Defendant, are relevant to her claimed economic damages and her attempts to mitigate those damages. She insists she produced all of the paystubs in her possession from Sunrise, and will produce her IRS Form W-2 when issued.[6] Although she makes arguments regarding income information from her current employer, this employer does not appear to be either the subject of the disputed subpoena or a topic of the current motion.

         Plaintiff asserts the subpoena is overly broad and seeks information which is speculative or inadmissible. Plaintiff argues Defendant has no basis to claim she has failed to mitigate her damages, and thus should not be permitted to go on a fishing expedition through her confidential employment records. She contends she either has already, or can, provide relevant information herself, without a subpoena to her employer. She cites to the 2012 District of Kansas opinion of Herrera v. Easygates, LLC, [7](discussed below) for the proposition that she should be provided an opportunity to produce the information voluntarily, rather than through a subpoena.

         Conversely, Defendant claims all the information it seeks is relevant. Although Plaintiff agreed to produce certain income records, these are not the only documents relevant to its defenses. Due to Plaintiff's duty to mitigate damages and her claims of emotional distress, Plaintiff has placed both her income and her emotional health at issue. Defendant argues her employment records may show the reasons for her separation from Sunrise, which would demonstrate her ultimate efforts to maintain employment and thus mitigate her damages. Additionally, her attendance records and statements to her subsequent employer could establish her emotional health, while other statements-such as those made in her employment application-could weigh on her credibility.

         Although Plaintiff relies in large part on her willingness to produce information, Defendant claims she has only produced a portion of her W-2's from Sunrise, nothing from her current employer, and she refuses to authorize access to tax records. Defendant suggests her lack of production strengthens its position-if Plaintiff will not produce wage records, Defendant should not be forced to rely upon her to produce other documents. Defendant argues the confidentiality of her employment records is protected by the Protective Order filed in this case.[8]

         C. Legal Standards

         Plaintiff's request to quash the non-party subpoena and issue a protective order implicates two primary Federal Rules of Civil Procedure: Rule 45 and Rule 26. Each rule is addressed in turn.

         1. Fed.R.Civ.P. 45

         Fed. R. Civ. P. 45 provides guidelines for the issuance of subpoenas to non-parties. Rule 45(d)(3)(A) requires the court to quash or modify a subpoena that requires disclosure of privileged or protected information or subjects a person to undue burden. Although Rule 45 does not specifically include relevance or overbreadth as bases to quash a subpoena, “this court has long recognized that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b) and Rule 34.”[9]

         2. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.