Doe v. Atchison Hospital Association

Filing 78

ORDER granting 59 motion to compel discovery. Signed by Magistrate Judge James P. O'Hara on 8/23/2018. (amh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DR. DOUGLAS GORACKE,

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Plaintiff,
v.
ATCHISON HOSPITAL ASSOCIATION,
Defendant.

Case No. 17-2664-JAR

ORDER
In this employment discrimination action, Dr. Douglas Goracke alleges that, due to
his disability, Atchison Hospital Association (“AHA”) terminated his contract to provide
physician services. Goracke moves to compel AHA to provide the personnel files of (1)
hospital employees who complained about him and (2) the physician hired to replace him
(ECF No. 59). Because the court finds the requested discovery relevant to claims and
defenses asserted in this case, the motion is granted.
Fed. R. Civ. P. 26(b)(1) allows parties to “obtain discovery regarding any
non-privileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case.” At the discovery stage, relevance is broadly construed.1 “[A]ny

1

See Erickson, Kernell, Deruseau, & Kleypas v. Sprint Sols., Inc., No. 16-mc-212JWL-GEB, 2016 WL 3685224, at *4 (D. Kan. July 12, 2016).
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matter that bears on, or that reasonably could lead to other matter that could bear on, any
issue that is or may be in the case” will be deemed relevant.”2
In determining whether the personnel file of a non-party should be disclosed in
discovery, the Tenth Circuit has directed courts to exercise caution:
[P]ersonnel files often contain sensitive personal information, ... and it is not
unreasonable to be cautious about ordering their entire contents disclosed
willy-nilly. Indeed, the Supreme Court has underscored that “the
requirement of Rule 26(b)(1) that the material sought in discovery be
‘relevant’ should be firmly applied, and the district courts should not neglect
their power to restrict discovery [to protect] ‘a party or person from
annoyance, embarrassment, [or] oppression....’”3
The Tenth Circuit added, however, “[t]his is not to say personnel files are categorically
out-of-bounds,” but only that requests for their disclosure should be “narrowly targeted” to
documents therein that are relevant to claims or defenses in the case.4

2

Rowan v. Sunflower Elec. Power Corp., No. 15-9227-JWL-TJJ, 2016 WL
3745680, at *2 (D. Kan. July 13, 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978) and ruling the Oppenheimer standard still relevant after the 2015
Amendment to Rule 26(b)(1)). See also Waters v. Union Pacific R.R. Co., No. 15-1287EFM-KGG, 2016 WL 3405173, at *1 (D. Kan. June 21, 2016) (“Relevance is broadly
construed at the discovery stage of the litigation and a request for discovery should be
considered relevant if there is any possibility the information sought may be relevant to the
subject matter of the action.”) (internal quotations and citation omitted).
3

Regan-Touhy v. Walgreen Co., 526 F.3d 641, 648-49 (10th Cir. 2008) (quoting
Herbert v. Lando, 441 U.S. 153, 177 (1979)).
4

Id. at 649.
2

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Personnel Files of Complainants
AHA has alleged it terminated Goracke’s contract not for discriminatory reasons,
but because of multiple complaints that Goracke “was sexually harassing nurses and
behaving inappropriately with female patients.”5 Goracke served three document requests
seeking documents related to hospital employees who complained about him (he calls them
“complainants”). The requests sought the complainants’ personnel files in their entirety,6
but Goracke has since agreed to limit the requests to exclude production of the
complainants’ medical and financial information.7
In employment-discrimination cases, courts in this district have deemed relevant
and discoverable an employee’s employment records, including personnel files, when the
employee is a “key witness,” e.g., when the employee “played an important role in the
decision or incident that gives rise to the lawsuit, including witnessing the events giving
rise to the lawsuit.”8 Thus, in Oglesby v. Hy-Vee, Inc., the court compelled production of

5

ECF. No. 63 at 2.

6

ECF No. 60-2 at ¶¶ 58, 59, & 61.

7

ECF No. 60 at 4.

8

P.S. ex rel. Nelson v. Farm, Inc., No. 07-2210-JWL-DJW, 2008 WL 2944911, at
*4 (D. Kan. July 28, 2008). See also Hall v. Life Care Ctrs. of Am., Inc., No. 16-2729JTM-KGG, 2018 WL 1992333, at *2 (D. Kan. April 27, 2018) (“Plaintiff is correct that
courts in this District generally hold that an individual’s employment records are relevant
and discoverable if the individual (1) is alleged to have engaged in the retaliation or
discrimination at issue, (2) is alleged to have played an important role in the decision or
incident that gives rise to the lawsuit, or (3) is a key witness to the events giving rise to the
lawsuit.” (internal quotation and citation omitted); White v. Graceland College Ctr. for
Prof’l Dev. & Lifelong Learning, Inc., 586 F. Supp. 2d 1250, 1259 (D. Kan. 2008) (“Courts
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a co-worker’s personnel file where the co-worker was alleged to have witnessed the events
defendant claimed gave rise to plaintiff’s termination (sleeping on the job).9 The court
noted that the personnel file might contain documents “supporting or contradicting” the
co-worker’s claims about the plaintiff and might lead to information about whether the
reason given for plaintiff’s termination was pretextual.10
Goracke asserts the complainants’ personnel files are relevant to assess their
credibility as witnesses11 and because the files could provide information about AHA’s
defense that it had a legitimate, non-discriminatory reason for its actions. AHA concedes
complaints against Goracke led to an internal investigation and the decision to re-negotiate
Goracke’s contract. AHA argues, however, that the complainants were not involved in the
decision to terminate Goracke.

While this may be true, Goracke has sufficiently

in the District of Kansas have generally held that an individual’s employment records are
relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and
therefore discoverable, if the individual (1) is alleged to have engaged in the retaliation or
discrimination at issue, (2) is alleged to have played an important role in the decision or
incident that gives rise to the lawsuit, or (3) is a key witness to the events giving rise to the
lawsuit.”); Oglesby v. Hy-Vee, Inc., No. 04-2440-KHV, 2005 WL 857036, at *2 (D. Kan.
April 13, 2005) (compelling production of individual’s personnel file in employment
discrimination case where individual witnessed the events defendant claimed gave rise to
plaintiff’s termination).
9

2005 WL 857036, at *2.

10

Id.

11

For example, information in the files could demonstrate Goracke disciplined or
complained about a complainant, which could reveal a bias the complainant might have
against Goracke. Goracke states he made “multiple complaints to AHA’s administration
[that] likely caused AHA to discipline [his] accusers.” ECF No. 65 at 3.
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established the complainants are “key witnesses” who observed the events AHA contends
led to the cancellation of his contract.12 Under the liberal standards applicable to discovery,
the court finds Goracke has met his burden to show the relevance of the personnel files (as
limited to exclude financial and medical information).
Personnel Files of Goracke’s Replacement
Goracke also moves to compel AHA to respond to a request for production of
documents seeking the personnel file of the physician who replaced him, Dr. Darin Allen.
In support of his request, Goracke relies on Horizon Holdings, L.L.C. v. Genmar Holdings,
Inc., in which the court found the personnel files of individuals who replaced the plaintiffs
“may be relevant to demonstrate an inference of discrimination.”13 The Horizon Holdings
court held that because there was an allegation plaintiffs were “terminated for inadequate
job performance and lack of qualifications and/or experience,” the “qualifications and other
personnel information regarding those employees who replaced Plaintiffs may lead to the
discovery of admissible evidence with regard to these issues.”14

The court agrees with AHA’s observation that Goracke has not asserted a sexual
harassment claim and the personnel files sought are not of individuals alleged to have
discriminated against Goracke. But this point is of no weight, given that the personnel files
are relevant to AHA’s defenses in the case. The court further places no weight in AHA’s
conclusory hypothetical that Goracke could be seeking the personnel files to attack his
accusers. At this point, the court is only determining whether the files are discoverable,
not whether information therein is admissible.
12

13

209 F.R.D. 208, 215 (D. Kan. 2002).

14

Id.
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Here, Goracke alleges his contract was terminated because AHA learned he had a
disability that affected his memory. Information about the health and qualifications of his
replacement is relevant to this claim because it could lead to circumstantial evidence giving
rise to a reasonable inference of discrimination.15 As in Horizon Holdings, the court finds
“the personnel files of the individual[] who replaced [Goracke] . . . may lead to the
discovery of admissible evidence with regard to” the reason for the termination of
Goracke’s contract.16 Although AHA suggests Allen’s “health status” can be obtained
through “less invasive means of discovery,”17 AHA presents no support for its implicit
argument that a party is limited to pursuing only the least invasive means of discovery.
Under the liberal discovery rules and absent any argument Allen’s personnel file
should be withheld to protect him from annoyance, embarrassment, or oppression,
Goracke’s motion to compel production of the personnel file is granted.

15

209 F.R.D. at 215; see also Adamson v. Multi Cmty. Diversified Servs., Inc., 514
F.3d 1136, 1145 (10th Cir. 2008) (“Circumstantial evidence permits the fact finder to draw
a reasonable inference from facts indirectly related to discrimination that discrimination,
in fact, has occurred.”); Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1169-70 (10th
Cir. 2003) (finding evidence about the age and qualifications of plaintiff’s replacements
could support plaintiff’s discrimination claim).
The court agrees with AHA that Allen’s age is not relevant, as Goracke does not
assert a claim of age discrimination.
16

209 F.R.D. at 215. See also Wagnor v. Pfizer, Inc. No. 07-1229-JTM-KMH, 2008
WL 821952, at *7 (D. Kan. Mar. 26, 2008) (finding the personnel files of employees who
replaced plaintiffs relevant and discoverable because they could contain information that
“would support the inference of a ‘pretext’”).
17

ECF No. 63 at 6.
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Other Potentially Outstanding Discovery
Finally, Goracke asks the court to order AHA to comply with an agreement reached
by the parties on June 1, 2018, with respect to AHA’s responses to Interrogatory Nos. 2-8;
Requests for Production of Documents Nos. 28-36, 39-42, 46, 57, 65, and 67-69; and an
ESI search.18 In its response brief, AHA acknowledged the parties’ agreement and stated
it planned to supplement its discovery production before the end of July 2018.19 Goracke
filed his reply on August 3, 2018, stating he still had not received AHA’s supplemental
responses. AHA filed a certificate of service on August 10, 2018, certifying it served its
supplemental responses to the interrogatories and document requests.20 Goracke has filed
nothing since that date challenging AHA’s supplemental responses. Therefore, it appears
this portion of Goracke’s motion is moot. To the extent any issues remain, however,
Goracke is given leave to file a new, targeted motion to compel by August 31, 2018.
IT IS THEREFORE ORDERED that Goracke’s motion to compel is granted. AHA
is ordered to produce the requested personnel files, as limited by the parties’ agreement, by
August 31, 2018.
Dated August 23, 2018, at Kansas City, Kansas.

18

ECF Nos. 60 at 7-9, and 65 at 6 (withdrawing Document Requests Nos. 70-71).

19

ECF No. 63 at 7.

20

ECF No. 72.
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s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge

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