O'Bryan v. Joe Taylor Restoration, Inc. et al

Filing 37

ORDER granting in part and denying in part 31 Plaintiff's Motion to Compel Defendant's Discovery. Signed by Magistrate Judge William Matthewman on 2/18/2021. See attached document for full details. (kza)

Case 9:20-cv-80993-WPD Document 37 Entered on FLSD Docket 02/18/2021 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 20-cv-80993 DIMITROULEAS/MATTHEWMAN
TIMOTHY O’BRYAN,
Plaintiff,

KJZ

v.

Feb 18, 2021

JOE TAYLOR RESTORATION, INC.,
AARON GETTY, KAREN RADEWICZ,
and GLENDA GALARZA,

West Palm Beach

Defendants.
________________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
COMPEL DEFENDANTS’ DISCOVERY [DE 31]
THIS CAUSE is before the Court on the Plaintiff’s Motion to Compel Defendants’
Discovery [DE 31]. The Defendants filed a Response in Opposition [DE 32] and Plaintiff filed a
Reply [DE 33]. Upon careful review of the Motion, Response, Reply, and the entire docket in this
case, the Court finds that the matter is ripe for review without a hearing.
DISCUSSION
Plaintiff’s Amended Complaint [DE 19] alleges that he was unlawfully denied two weeks
of paid sick leave under the Emergency Paid Sick Leave Act (“EPSLA”), which was passed by
Congress during the COVID-19 pandemic to expand protections for workers who may have been
infected with the virus. 1 On November 24, 2020, Plaintiff served upon Defendants a Second Set
of Interrogatories (4 in total) and Second Requests for Production (5 in total). The disputes at issue
involve Requests for Production (“RFP”) numbers 2 through 5 and Interrogatories numbers 2
through 4. Defendants objected to all on relevance and proportionality grounds.

1

United States v. Crowther, No. 20-cr-00114, 2021 WL 50481, at *2 (M.D. Fla. Jan. 6, 2021).

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Plaintiff seeks information related to Defendants’ use of Payroll Protection Program
(“PPP”) funds expended on other employees in Interrogatories number 2 and 4 and RFP 2. Plaintiff
argues that the use of PPP funds on other employees could show any of the following three
scenarios, all of which the Plaintiff believes are relevant for the issue of liquidated damages: (1)
that Defendants willfully chose not to pay employees sick leave, (2) that Defendants paid
employees who were seeking leave but chose not to pay Plaintiff, or (3) that Defendants terminated
employees who were seeking leave.
Defendants argue that their participation in the PPP program is irrelevant and does not have
any impact on whether Plaintiff was eligible for paid sick leave under the EPSLA, a provision of
the Families First Coronavirus Response Act (“FFCRA”). After a careful review of the parties’
positions, the Court agrees with the Defendants and finds that Defendants’ use of PPP funds is not
relevant or proportional to the pending claims and defenses per Fed.R.Civ.P. 26(b)(1). To receive
“a PPP loan, borrowers must apply to participating private lenders and make several good-faith
certifications, including that the loan funds ‘will be used to retain workers and maintain payroll or
make mortgage payments, lease payments, and utility payments.’” United States v. Crowther, No.
20-cr-00114, 2021 WL 50481, at *2 (M.D. Fla. Jan. 6, 2021) (citing 15 U.S.C. § 636(a)(36)(G)(i)).
There is no penalty for misuse of PPP funds besides ineligibility for loan forgiveness. Id.
On the other hand, the Emergency Paid Sick Leave Act is a provision under the FFCRA
“with enforcement provisions tied to the Fair Labor Standards Act.” Thornberry v. Powell Cnty.
Det. Ctr., No. 20-271, 2020 WL 5647483, at *2 (E.D. Ky. Sept. 22, 2020). PPP loans and eligibility
under the EPSLA for sick leave are not mutually exclusive. Defendants are not required to use
their PPP loan to pay employees sick leave under the EPSLA. Moreover, even if Defendants used
their PPP loan to pay such sick leave, that would have no bearing as to whether Plaintiff was

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eligible for the same. The Defendants’ use of PPP funds also bears no relevance to the claims or
defenses of any party involved in this action. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case . . . .”).
Thus, Plaintiff’s request for information related to Defendants’ use of PPP funds is
irrelevant, disproportionate and overbroad. Therefore, Plaintiff’s Motion to Compel Interrogatory
number 2 and RFP 2 is due to be denied. Plaintiff’s Motion to Compel Interrogatory number 4 is
due to be denied to the extent it asks whether PPP funds were expended on sick leave.
However, the remaining matters at issue do not deal with Defendants’ use of PPP funds.
Interrogatory number 3 asks Defendants to provide names and last known addresses of all
employees, aside from Plaintiff, who were terminated between April 1, 2020, and May 31, 2020,
including the date of termination and reason for termination. Plaintiff argues that these terminated
employees may be potential witnesses to support Plaintiff’s claim because Defendants may have
similarly denied these employees the same benefits. Rule 26(b)(1) of the Federal Rules of Civil
Procedure defines the scope of discovery as “any non-privileged matter that is relevant to any
party's claim or defense and proportional to the needs of the case,” considering the importance of
the issues at stake, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery, and whether the burden of the discovery outweighs the likely benefit.
Id.
It is well established that the courts must employ a liberal standard in keeping with the
purpose of the discovery rules. Fed. R. Civ. P. 26(b)(1). Given the broad discovery rules,
Interrogatory number 3 is relevant and proportional to the parties’ claims and defenses. While
Defendants argue that the facts and circumstances of other employees’ departures are irrelevant,

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the Court finds that this information bears directly on willfulness and damages.
Additionally, Interrogatory number 4 requests from Defendants a list of all employees that
either requested a leave of absence or were placed into quarantine through Defendants’ Emergency
Paid Sick Leave Policy from April 1, 2020, to May 31, 2020, including the dates of leave, reason
for leave, and whether PPP funds were used for the leave. As mentioned previously, whether PPP
funds were used for the leave is irrelevant to the claims and defenses of the parties. Defendants
objected as to relevance and proportionality in regard to the information related to the PPP funds.
Yet, Defendants made no argument for why they should not submit a list of all employees that
either requested a leave of absence or were placed in quarantine through the applicable policy from
April 1, 2020, to May 31, 2020. Defendant simply stated that the information was irrelevant to
whether Plaintiff was eligible for sick leave under the EPSLA.
“[T]he burden of showing that the requested discovery is not relevant to the issues in the
case is on the party resisting discovery.” Dunkin’ Donuts, Inc. v. Mary’s Donuts, Inc., No. 010392-CIV, 2001 WL 34079319, at *2 (S.D. Fla. Nov. 1, 2001). Additionally, “boilerplate
objections and generalized responses are improper.” Ranger Constr. Indus., Inc. v. Allied World
Nat’l Assurance Co., No. 17-81226-CIV, 2018 WL 1701913, at *3 (S.D. Fla. Apr. 6, 2018) (citing
Alvar v. No Pressure Roof Cleaning, LLC, No. 17-80725-CV, 2018 WL 1187777, at *2 (S.D. Fla.
Mar. 7, 2018); Sream, Inc. v. Hassan Hakim & Sarwar, Inc., No. 16-CV-81600, 2017 WL 878704,
at *1 (S.D. Fla. Mar. 6, 2017)). Defendants fail to explain why Plaintiff’s discovery of other
employees who were placed into quarantine through the same Emergency Sick Leave Policy as
Plaintiff would be irrelevant to Plaintiff’s claims. In fact, this information is directly relevant and
proportional to Plaintiff’s claim of eligibility under the EPSLA and whether Plaintiff was
unlawfully denied sick leave. The information of other employees could provide Plaintiff with

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further information on willfulness and whether other employees were treated similarly to Plaintiff.
RFPs 3 through 5 seek “JTR Manager Checklist documentation” for any employees who
were terminated or who resigned from April 1, 2020, to May 31, 2020. RFP 5 specifically asks for
documentation related to the end of Stanley Silva’s employment. Stanley Silva is a former
employee of Defendants who was not provided paid sick leave and was terminated on the same
day as Plaintiff. Plaintiff argues that documentation for both terminations and resignations are
relevant because Defendants attempted to avoid liability by claiming that both Plaintiff and Mr.
Silva resigned, even though there is evidence of their termination. See DE 31-3. Plaintiff further
argues that evidence of Defendants’ failure to pay sick leave benefits to other employees, as well
as Plaintiff, could support Plaintiff’s claim that Defendants willfully denied Plaintiff sick leave.
Additionally, Plaintiff argues that if Defendants did pay out sick leave benefits to other employees,
it would support Plaintiff’s position that he is also entitled to such benefits. Plaintiff also claims
that former employees that were either terminated or resigned may be potential witnesses to
support Plaintiff’s claim of an unlawful denial of benefits.
Defendants argue that whether or not other employees were paid emergency sick leave
would make no difference as to whether Plaintiff was eligible for the same. Defendants further
argue that the information surrounding other employees’ departures would not change the fact that
Plaintiff was dishonest, and testified about such dishonesty, when he lied about being subject to a
federal, state or local quarantine order related to COVID-19. See DE 32-1; DE 32-3. Thus,
Defendants object as to relevance and proportionality.
The Court finds that RFPs 3 through 5 seek relevant and proportional documents under
Fed. R. Civ. P. 26(b)(1). Since Defendants previously claimed that Plaintiff resigned, even though
there is evidence to the contrary, both resignations and terminations may provide relevant

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documentation. See DE 31-3. Moreover, considering the fact that Defendants argue that Plaintiff
was ineligible for paid sick leave because he lied about his circumstances, other employees’
documentation surrounding their requests for paid leave would be directly relevant. The
documentation surrounding other employees’ departures could demonstrate whether other
employees received the same treatment after requesting paid sick leave. Furthermore, the
information related to Mr. Silva may be relevant to Plaintiff’s termination and denial of benefits
because Mr. Silva was terminated on the same day and for the same reasons as Plaintiff.
Based on the foregoing, the Plaintiff’s Motion to Compel Defendant’s Discovery [DE 31]
is DENIED as to Interrogatory number 2 and RFP 2. Plaintiff’s Motion to Compel Interrogatory
number 4 is DENIED IN PART, denying the portion of the question related to whether PPP funds
were used for the leave. Further, the remainder of Plaintiff’s Motion [DE 31], concerning RFPs 3
through 5, is GRANTED. Plaintiff’s Motion to Compel Interrogatory number 4 is GRANTED
IN PART. Defendants shall serve supplemental interrogatory responses and supplemental
responses to the requests for production, and produce all non-privileged responsive documents, in
accordance with this Order, on or before February 26, 2021.
DONE and ORDERED in chambers at West Palm Beach, Palm Beach County,
Florida, this 18th day of February 2021.
________________________________
WILLIAM MATTHEWMAN
United States Magistrate Judge

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