United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER United States Magistrate Judge
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.
Nature of the Case
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”).
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.
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.
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).
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).
Motion to Quash and for Protective Order (ECF No.
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.This initial subpoena was served on
Sunrise at its corporate headquarters in the
EasternDistrict 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.
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.The Kansas subpoena has not been served.
After conferring as required by D. Kan. Rule 37.2,
parties could not resolve their disagreements regarding the
subpoena, leading to the instant motion.
Request at Issue
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.”
Positions of the Parties
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. 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.
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, (discussed below) for the
proposition that she should be provided an opportunity to
produce the information voluntarily, rather than through a
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.
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.
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
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.”