Parker v. Delmar Gardens of Lenexa, Inc.
MEMORANDUM AND ORDER denying 35 Plaintiff's Motion to Quash Subpoena and for Protective Order. See Memorandum and Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 5/2/17. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DELMAR GARDENS OF LENEXA, INC.
dba Garden Villas of Lenexa,
Case No. 16-2169-JWL-GEB
MEMORANDUM AND ORDER
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
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
The information recited in this section is taken from the pleadings (Compls., ECF No. 1, 27;
Answers, ECF Nos. 21, 28), the briefs regarding Plaintiff’s Motion to Quash (ECF Nos. 35, 36,
42, 47); and the Memorandum and Order on Defendants’ Motion to Dismiss (ECF No. 15). This
background information should not be construed as judicial findings or factual determinations.
not cleaning properly and ensuring sufficient supplies. No action was taken on this
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
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).
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).
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 Eastern3
District of Virginia, and although the parties discussed Plaintiff’s objections to that
Pl.’s Mot., ECF No. 35, Ex. A.
The parties’ briefing suggests the out-of-state subpoena was served in the Northern District of
Virginia. However, there is no “Northern” District of the U.S. District Court in Virginia. Based
upon the McLean, Virginia address shown on the subpoena, the Court assumes the subpoena was
served in the Eastern District of Virginia.
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.
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.”
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
Id. at Ex. C.
See Pl.’s Certif. of Compliance, ECF No. 35-2, Ex. B.
At the time of the filing of Plaintiff’s Reply brief In January 2017, she was waiting to receive
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
No. 11-CV-2558-EFM-GLR, 2012 WL 5289663, at *1 (D. Kan. Oct. 23, 2012).
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
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.
Fed. R. Civ. P. 45
Fed. R. Civ. P. 45 provides guidelines for the issuance of subpoenas to nonparties. 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
See Protective Order, ECF No. 20.
Martinelli v. Petland, Inc., No. 10-mc-407-RDR, 2010 WL 3947526, at *3 (D. Kan. Oct. 7,
2010) (internal citations omitted); Martin v. Grp. 1 Realty, Inc., No. 12-2214-EFM-DJW, 2013
WL 3322318, at *2 (D. Kan. July 1, 2013).
Fed. R. Civ. P. 26
Rule 26(b)(1) permits discovery of “any non-privileged matter that is relevant to
any party’s claim or defense.” Relevance, at discovery, is broad,10 and does not mean the
information obtained would necessarily be admitted at trial.
If the party seeking
discovery meets its initial, minimal burden to demonstrate its request is relevant on its
face,11 the resisting party cannot rely upon a conclusory statement that the requested
discovery is irrelevant.12 It “must either demonstrate the discovery sought does not come
within the broad scope of relevance defined in Rule 26(b)(1), or that it is of such marginal
relevance that the potential harm caused by the discovery would outweigh the
presumption in favor of broad disclosure.”13 “Courts should lean towards resolving
doubt over relevance in favor of discovery,”14 and the court has broad discretion over
discovery matters and to decide when a protective order is appropriate.15
See Speed Trac Techs., Inc. v. Estes Exp. Lines, Inc., No. 08-212-KHV, 2008 WL 2309011 at
*3 (D. Kan. June 3, 2008).
Speed Trac, 2008 WL 2309011, at *2 (citing Heartland Surgical Specialty Hosp., LLC v.
Midwest Div., Inc., No. 05–2164-MLB-DWB, 2007 WL 2122437, at *4 (D. Kan. July 20, 2007).
XPO Logistics Freight, No. 16-MC-224-CM-TJJ, 2016 WL 6996275, at *4 (citing Speed Trac,
2008 WL 2309011, at *3).
Folger v. Medicalodges, Inc., No. 13-1203-MLB-KMH, 2013 WL 6244155, at *2 (D. Kan.
Dec. 3, 2013) (citing Jackson v. Coach, Inc., No. 07–2128–JTM–DWB, 2008 WL 782635, at *4
(D. Kan. Mar. 20, 2008); Teichgraeber v. Mem'l Union Corp. of Emporia State Univ., 932 F.
Supp. 1263, 1266 (D. Kan. 1996)).
See S.E.C. v. Merrill Scott & Assoc., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (“The district
court has broad discretion over the control of discovery ...”) (internal citations omitted); Layne
Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010) (“Federal Rule of Civil
Procedure 26(c) confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.”) (quoting Seattle Times Co. v. Rhinehart,
467 U.S. 20, 36 (1984)).
Additionally, under Rule 26(b), the scope of discovery must be “proportional ‘to
the needs of the case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit.’”16 “A subpoena that
seeks irrelevant, overly broad, or duplicative discovery causes undue burden, and the trial
court may quash it on those bases.”17
Rule 26(c) allows the court, for good cause, to issue an order to protect a party
from annoyance, embarrassment, oppression, or undue burden or expense. The Court
then has broad discretion to utilize such a protective order to specifically define and/or
narrow the disclosure or discovery, including the terms, timing, and method of
Plaintiff supports her arguments with a single case from this district and opinions
from other jurisdictions. She relies on large part on Herrera v. Easygates, LLC,19 a
District of Kansas case in which the plaintiff sued his former employers for race
discrimination, harassment, and retaliation.
Gilbert v. Rare Moon Media, LLC, No. 15-MC-217-CM, 2016 WL 141635, at *4 (D. Kan.
Jan. 12, 2016) (citing Fed. R. Civ. P. 26(b)).
Rare Moon, 2016 WL 141635, at *4 (citing Heartland Surgical Specialty Hosp., 2007 WL
2122437, at *5).
Fed. R. Civ. P. 26(c)(1)(A)-(H).
No. 11-CV-2558-EFM-GLR, 2012 WL 5289663, at *1 (D. Kan. Oct. 23, 2012).
In Herrera, the defendants intended to serve Herrera’s current employer with a
subpoena for personnel records, and he sought a protective order from the court. He
agreed to provide copies of W–2 and other pay records and to authorize defendant to
obtain copies of his relevant tax records, but objected to the subpoena of his employer.
Defendant argued the information sought was relevant to mitigation of damages and
credibility of the plaintiff. In its ruling, the court focused on the inherent potential for
abuse when requesting information from a current employer, but also found the subpoena
overly broad and primarily seeking irrelevant documents. The court found “alternate
sources for obtaining the admitted relevant information provide good cause to protect
Plaintiff against discovery of the same information from his current employer” and
granted plaintiff’s motion to quash.20 Herrera was permitted to produce his resume and
employment application directly to defendants; but if he failed to do so, the court would
consider further whether a subpoena would be permitted.21 Although the court barred the
subpoena to the current employer, it did find the information sought was relevant to both
Herrera’s mitigation of damages and his credibility—but “discoverable through a lesser
intrusive means than”22 the current employer.
Although Herrera is persuasive, it actually cuts both ways for this case. The court
found the information could be obtained in a less intrusive manner than through
subpoena, which supports Plaintiff’s position. But in Herrera, a current employer—not a
former employer—faced subpoena, and the court did find the information relevant; both
Id. at *2.
Id. at *3.
facts which support Defendant’s position. Despite both parties analyzing Herrera and
other out-of-district opinions to support their arguments, they fail to recognize additional
caselaw from this district, which permits subpoenas to both current and former employers
in employment discrimination cases.
For example, in Kear v. Kohl's Dep't Stores, Inc.,23 the defendant intended to issue
a subpoena to plaintiff’s current employer, seeking “any and all documents relating to”
plaintiff, including employment records, performance evaluations, promotions, job
applications, and income information.
Although the court was “sympathetic to
[p]laintiff’s concerns regarding the harassment factor” of a subpoena to a current
employer, the court allowed the subpoena, finding that potential annoyance to the
plaintiff did not outweigh the defendant’s showing of obvious relevance of the
Following the Kear decision, in Martin v. Grp. 1 Realty, Inc.,25 the court was
confronted with a motion for a protective order from subpoenas to the plaintiff’s current
and former employers. The court analyzed “[t]wo recent workplace discrimination cases
from this District [finding] subpoenas seeking a plaintiff’s employment records from a
former employer to be both relevant and appropriate.”26 First, in Harroald v. Triumph
Kear v. Kohl's Dep't Stores, Inc., No. 12-1235-JAR-KGG, 2013 WL 628331 (D. Kan. Feb. 20,
2013), upheld on review in 2013 WL 1819777 (D. Kan. Apr. 30, 2013).
Id. at *2-3.
Martin v. Grp. 1 Realty, Inc., No. 12-2214-EFM-DJW, 2013 WL 3322318, at *3 (D. Kan. July
Id. at *3 (D. Kan. July 1, 2013) (citing Harroald v. Triumph Structure–Wichita, Inc., No. 10–
1281–JAR–KGG, 2011 WL 2118648, at *3 (D. Kan. May 27, 2011); Gilkey v. ADT Sec. Servs.,
Inc., No. 11–1369–JAR–KGG, 2012 WL 3143872, at *6 (D. Kan. Aug. 2, 2012)).
Structure–Wichita, Inc.,27 the court found that given the nature of the claims and defenses
raised by the parties—including the plaintiff’s requests for medical expenses and pain
and suffering—the documents requested in the subpoenas to former employers met “the
broad and liberal construction afforded by the federal discovery rules.”28 The Harroald
court found the requests to be “more or less standard in the context of employment
discrimination claims brought in this District.”29
Later, in Gilkey v. ADT Security Services, Inc.,30 the plaintiff moved to quash a
subpoena to his former employer. The court denied the motion, finding the information
relevant and discoverable to plaintiff’s claims, including his request for “intangible
injuries,” and to the after-acquired evidence defense raised by the defendant.31
After review of both Harraold and Gilkey, the court in Martin denied the
plaintiff’s motion for protective order, but modified the subpoenas to include only those
types of documents it found truly relevant to the parties’ claims and defenses, including:
performance evaluations; discipline and discharge information; attendance information;
documents related to any work-related injury; and any allegations, charges or complaints
by or against the plaintiff32—topics quite similar to those sought by Defendant in this
Harroald, 2011 WL 2118648, at *3.
Martin, No. 12-2214-EFM-DJW, 2013 WL 3322318, at *3 (citing Harroald, 2011 WL
2118648, at *3).
Id. (citing Harroald, 2011 WL 2118648, at *3).
Gilkey, 2012 WL 3143872, at *6.
Martin, 2013 WL 3322318, at *3 (citing Gilkey, 2012 WL 3143872, at *6).
Id. at *6.
In the above-described cases and others, courts in this District have determined
that conclusory claims of annoyance, harassment, and embarrassment are not sufficient to
satisfy an objecting party’s burden when seeking a protective order under Rule 26(c).33
And while the bulk of caselaw from this District acknowledges the potential abuse arising
from subpoenas to employers, when weighing the potential for abuse, courts tend to
resolve the issue on the side of the broad nature of discovery, and the concept that
information is not required to be admissible at trial to be discoverable.
Most importantly, when defending Plaintiff’s claim for damages, the “defendantemployer bears the burden of showing that the plaintiff failed to mitigate” her damages.34
In doing so, courts in this district have found a plaintiff’s “failure to search for alternative
work, [her] refusal to accept substantially equivalent employment, or [her] voluntary
quitting of alternative employment without good cause constitute affirmative defenses to
backpay liability.”35 Therefore, any information tending to demonstrate Plaintiff’s efforts
to obtain or maintain similar employment appears relevant to Defendant’s burden of
proof at trial. Because discovery is broad, and the Court should resolve doubt over
relevance in favor of discovery, the Court finds the subpoena seeks information relevant
on its face.
See, e.g., Stewart v. Mitchell Transp., No. 01-2546-JWL-DJW, 2002 WL 1558210, at *6 (D.
Kan. July 11, 2002) (finding defendant’s conclusory statements that plaintiffs seek to annoy,
harass, and embarrass him through the subpoenas were insufficient to satisfy his Rule 26(c)
Leidel v. Ameripride Servs., Inc., 276 F. Supp. 2d 1138, 1142 (D. Kan. 2003).
Id. (citing Volkman v. United Transportation Union, 826 F. Supp. 1253, 1258 (D. Kan. 1993)).
Plaintiff contends her personnel files and employment records are confidential and
should be protected from “wide dissemination.”36 This Court does not disagree with the
sensitivity and confidentiality of the records.
However, Plaintiff’s argument is
incomplete. It is well-established that confidentiality of information does not equate to a
privilege against its production.37 Here, a Protective Order is already in place which
specifically protects “any and all financial and employment records”38 produced in this
litigation, thereby preventing the distribution of Plaintiff’s private and personal
Because the information sought by Defendant’s intended subpoena appears, on its
face, to be relevant to Plaintiff’s mitigation of damages and her claim of emotional
distress, the Court finds the request meets the broad definition of relevance under Rule
26(b). Moreover, Plaintiff’s objections regarding confidentiality do not meet the standard
of “good cause” for a protective order under Rule 26(c).
Because any sensitive
information which may be produced is already protected by the current Protective Order,
Plaintiff’s confidentiality objections are overruled. Plaintiff’s motion to quash is denied,
Pl.’s Mot., ECF No. 35, at 3 (citing Porter v. Farmers Ins. Co., Inc., No. 10-116-GKF (N.D.
Okla. Apr. 25, 2011) (citing Williams v. Board of County Comm 'rs, No. 98-2485-JTM (D. Kan.
Jan. 21, 2000)).
See, e.g., E.E.O.C. v. Thorman & Wright Corp., 243 F.R.D. 426, 430 (D. Kan. 2007) (noting
“as this Court has previously held, ‘a concern for protecting confidentiality does not equate to
privilege’”) (citing DIRECTV, Inc. v. Puccinelli, 224 F.R.D. 677, 682 (D. Kan. 2004); Sonnino v.
Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 642 (D. Kan. 2004)).
Protective Order, ECF No. 20, at 1, ¶ A.
and Defendant is permitted to serve its subpoena on Plaintiff’s former employer to gain
information about her employment with Sunrise since her termination by Defendant.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Quash Subpoena and
for Protective Order (ECF No. 35) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 2nd day of May 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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