Williams v. United States Environmental Services

Filing 57

ORDER granting in part and denying in part 48 Motion to Compel. Each party shall bear its own costs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/18/2016. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

SHINAYE WILLIAMS

CIVIL ACTION

VERSUS

NO. 15-168-RLB

UNITED STATES ENVIRONMENTAL
SERVICES, LLC, USES, INC. AND UNITED
STATES MARITIME SERVICES, INC.

ORDER
Before the Court is Defendant’s Motion to Compel (Motion) responses to Interrogatory
Nos. 7, 9 and 10, as well as Request for Production Nos. 10, 11, 12 and 14, filed on November 9,
2015. (R. Doc. 21). Plaintiff filed a Memorandum in Opposition (Opposition) on November 30,
2015. (R. Doc. 27). On December 2, 2015, Defendant filed a Reply Memorandum in support of
its Motion. (R. Doc. 32). For the reasons discussed below, Defendant’s Motion is GRANTED
in part and DENIED in part.
I.

BACKGROUND
In this action, Plaintiff alleges that Defendant violated Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2, by subjecting her to: discriminatory compensation; sexually
harassing conduct by her supervisor; and retaliation by firing her shortly after reporting her
supervisor’s conduct.1 (R. Doc. 18 at 1). According to the Complaint, Plaintiff started working

1

Plaintiff claims the same conduct also violated the Louisiana Employment Discrimination Law. Plaintiff also sues
Defendants under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201; the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. § 1001; and the Consolidated Omnibus Budget Reconciliation Act of 1985
(COBRA), Pub. L. No. 99-272, § 9503, 100 Stat. 82 (1986).

for Defendants on June 27, 2014 as a health and safety supervisor. (R. Doc. 18 at 3). In July of
2014, Defendants “secured a contract to work at the ExxonMobil Baton Rouge refinery”
(ExxonMobil) and assigned Plaintiff to work at the site. (R. Doc. 5 at 2). “Throughout her
employment,” Plaintiff alleges, she “was subject to unwanted touchings [sic], inappropriate
comments, and sexual advances from her supervisor, Mr. Robert ‘Boogie’ Sanders.” (R. Doc. 18
at 3). Plaintiff then “reported Mr. Sanders’ conduct to Defendants’ Human Resources
Department.” (R. Doc. 18 at 3). Shortly after reporting the conduct, Plaintiff claims that
“Defendants abruptly terminated [her] employment.” (R. Doc. 18 at 3). On March 20, 2015,
Plaintiff filed the instant lawsuit.
During discovery on June 18, 2015, Defendant served Interrogatories and Requests for
Production of Documents on Plaintiff. (R. Doc. 21-1 at 2). Plaintiff originally responded to the
discovery on August 11, 2015. (R. Doc. 21-3). After Defendant complained about the
sufficiency of the responses, Plaintiff submitted her First Supplement Responses on August 15,
2015 (R. Doc. 21-5) and her Second Supplemental Responses on September 28, 2015 (R. Doc.
21-7). Nonetheless, Defendant filed the instant Motion to Compel on November 9, 2015,
claiming Plaintiff’s responses to Interrogatory Nos. 7, 9 and 10, and Request for Production Nos.
10, 11, 12 and 14 “are still insufficient and non-responsive.” (R. Doc. 21-1 at 2).
II.

APPLICABLE LAW
Rule 26(b)(1) of the Federal Rules of Civil Procedure2 allows a party to “obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense and

2

Rule 26(b)(1) of the Federal Rules of Civil Procedure was amended on December 1, 2015 to clarify the scope of
discovery. The 2015 amendments “restor[e] the proportionality calculation to Rule 26(b)(1),” but do not “change
the existing responsibilities of the court and the parties to consider proportionality.” Fed. R. Civ. P. 26(b)(1)
advisory committee’s note (2015). The amendments likewise do not “place on the party seeking discovery the
burden of addressing all proportionality considerations.” Fed. R. Civ. P. 26(b)(1) advisory committee’s note (2015).
“The amendments to Rule 26 govern in all proceedings in civil cases thereafter commenced and, insofar as just and
practicable, in all proceedings then pending.” American Federation of Musicians of the U.S. and Canada v. Skodam

proportional to the needs of the case.” Whether discovery is proportional depends on “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.” Fed. R. Civ. P. 26(b)(1). Information may fall within this scope of discovery
even if it is not admissible in evidence. Fed. R. Civ. P. 26(b)(1).
III.

DISCUSSION
In its Motion, Defendant claims that Plaintiff has “failed to provide adequate responses to

Interrogatory Nos. 7, 9, and 10,” which “seek discoverable information relating to Plaintiff’s
employment history and earnings, her treating physicians, and any treatment sought for mental
anguish or stress.” (R. Doc. 21-1 at 4). Defendant additionally argues that Plaintiff did not
adequately respond to Request for Production Nos. 10, 11, 12 and 14, seeking “documents and
authorizations relating to Plaintiff’s employment history, her earnings, her tax returns, and her
medical records.” (R. Doc. 21-1 at 4). In response, Plaintiff claims that Defendant seeks “highly
personal categories of information that have no bearing on the claims and defenses at issue in
this case.” (R. Doc. 27 at 1).
A.

Income Tax Returns and W-2s

Defendant’s Request for Production Nos. 11 and 14 seek information regarding
Plaintiff’s income from any and all sources, including wages. (R. Doc. 21-3 at 12-13).
Request for Production No. 11:
Please fully execute the Internal Revenue Service Authorization forms, which forms are
attached.

Films, LLC, -- F. Supp. 3d --, 2015 WL 7771078, at *5 (N.D. Tex. Dec. 3, 2015) (applying the amended version of
Rule 26(b)(1) to a motion to compel filed before December 1, 2015). Given the restorative nature of the 2015
amendments, the Court finds that applying the amendments to the instant Motion to Compel is both just and
practicable.

Request for Production No. 14:
Federal and State income tax returns for the preceding four (4) years to the present, including W2 forms, filed by you, and any records of wages earned during those years.
Response to Request for Production Nos. 11 and 14:
Plaintiff objects to this Request because tax returns are subject to a qualified privilege and
Defendant cannot establish a compelling need for Plaintiff’s tax returns. Plaintiff has provided,
or will provide, the details of her earnings history to demonstrate her mitigation efforts.
(R. Doc. 21-3 at 12-13); (R. Doc. 41).
Tax returns are highly sensitive documents and the court will only compel their
production where the requesting party “demonstrates both: (1) that the tax information is
‘relevant’ to the subject matter of the action; and (2) that there is a ‘compelling need’ for the
information because the information contained in the tax returns is not ‘otherwise readily
obtainable’ through alternative forms of discovery, such as depositions or sworn interrogatory
answers.” Bulter v. Exxon Mobile Ref. & Supply Co., 2008 WL 4059867, at *2 (M.D. La. Aug.
28, 2008) (citing National Gas Pipeline Co. of America, 2 F.3d 1397, 1411 (5th Cir. 1993)).
Because Plaintiff is seeking compensatory damages for lost and unpaid wages, her tax
returns are relevant to the litigation. Butler, 2008 WL 4059867, at *2 (Numerous courts have
recognized “that tax return information is relevant where a plaintiff has placed the subject of his
income/earning capacity at issue in litigation.”). For the same reason, any other documents
evidencing Plaintiff’s earnings, which are not subject to the same qualified privilege, are
likewise relevant and must be produced. However, as the Court later explains with respect to
Request for Production No. 12, Plaintiff’s earnings prior to her employment with Defendant are
not relevant to this cause of action. Therefore, the temporal scope of the financial information
relevant to Plaintiff’s case is limited to the time period during and after her employment with

Defendant. Because Plaintiff was hired by Defendant in June of 2014, only Plaintiff’s earnings
(and other financial information) between 2014 and the present are relevant and discoverable.
Second, Defendant has shown a compelling need for Plaintiff’s tax returns — not
because, as Defendant first argues, Plaintiff has not produced them herself, but because she “has
not produced any other documents relating to the wages she has earned.” (R. Doc. 21-1 at 12).
While the Court recognizes that this information may also be obtained in response to
interrogatories3 or deposition questions, that fact does not negate Defendant’s showing. Plaintiff
was asked during discovery to produce “any records” evidencing her income. Defendant claims
and Plaintiff does not dispute that she has not produced any responsive documents. Plaintiff has
likewise not claimed that these documents do not exist. For that reason, Defendant has shown a
compelling need for Plaintiff’s tax returns. Therefore,
IT IS ORDERED that Defendant’s Motion to Compel is GRANTED in part as to
Request for Production Nos. 11 and 14. The Court temporally limits Request for Production
Nos. 11 and 14 to the period between 2014 and the present.
In accordance with the temporal limitations set by the Court, Plaintiff must respond to
Request for Production Nos. 11 and 14 with 14 days of this Order.
To the extent Plaintiff has not yet filed her 2015 tax returns, Plaintiff must still authorize
the release of those tax returns in response to Request for Production No. 11, and she must
supplement her response to Request for Production No. 14 “in a timely manner” once that

3

In response to Interrogatory No. 7, Plaintiff indicated that she currently earns $24.00 per hour. While this
information is partially responsive to Request for Production No. 14, Plaintiff did not indicate the amount of hours
worked during any given week, leaving Defendant unable to discern the actual amount of wages earned in her
current position. Moreover, Plaintiff does not indicate whether she has any other sources of income. Therefore,
Plaintiff’s Answer to Interrogatory No. 7 does not negate Defendant’s compelling need for the documents sought in
Request for Production No. 14.

information becomes available. See Fed. R. Civ. P. 26(e)(1) (outlining each party’s ongoing duty
to supplement discovery responses and initial disclosures).
B.

Employment History and Records

Defendant’s Interrogatory No. 7 and Request for Production No. 12 seek information
relating to Plaintiff’s employment history:
Interrogatory No. 7:
Please identify with specificity your job history since leaving high school until present, including
dates of employment, name of employer(s), position(s) held, salary or wage paid, reason for
leaving, if any. If you have not worked since leaving USES, please identify all efforts you have
made to secure employment, including companies to whom you sent resumes, interviews
obtained and the like.
Response to Interrogatory No. 7:
Plaintiff objects to this Interrogatory because it is overly broad, unduly burdensome, and not
reasonably calculated to lead to the discovery of admissible evidence. In particular, Plaintiff’s
work history since leaving high school has no bearing on the claims and defenses in the instant
case. Without waiving these objections, Plaintiff worked as a foster parent from 2009 through
2013 and earned $2,900 per month. As to Plaintiff’s efforts to secure work since her discharge
from Defendant, please see documents Bates numbered S. Williams 115 through 118.
Supplemental Response to Interrogatory No. 7:
. . . Finally, Plaintiff began working for Acme Truck Lines on or around July 20, 2015 as a driver
and earns $24.00/hour in that position.
(R. Doc. 21-3 at 5); (R. Doc. 21-7 at 4).
By only identifying her past wages and job title, and providing a copy of her resume,
Defendant argues that Plaintiff has not adequately answered Interrogatory No. 7, to the extent it
seeks information regarding her past employment. (R. Doc. 21-3); (R. Doc. 21-7); (R. Doc. 218).4 Defendant correctly points out that Plaintiff did not provide all of the information requested

4

In response to Interrogatory No. 7, Plaintiff freely disclosed the amount of her monthly earnings during her
previous employment. But as the Court explains with respect to Request for Production Nos. 12 and 14, Plaintiff’s
wages earned before her employment with Defendant are not relevant to her claims before this Court and the Court
has not compelled the production of any information referencing Plaintiff’s wages prior to her employment with
Defendant. The fact that Plaintiff disclosed some of this information in response to an Interrogatory does not affect
the Court’s holding.

in Interrogatory No. 7. Nonetheless, as the Court explains with respect to Request for Production
No. 12, information regarding Plaintiff’s past employers, positions, salaries and reasons for
leaving is not relevant to any party’s claim or defense before the Court. Fed. R. Civ. P. 26(b)(1).
This information is likewise not proportional to the needs of the case, which is, “by all
appearances to the court, a fairly routine case alleging individual employment discrimination.”
Perry v. Best Lock Corp., 1999 WL 33494858, at *2 (S.D. Ind. Jan. 21, 1999) (“If filing . . . a
fairly routine case alleging individual employment discrimination opens up the prospect of
discovery directed at all previous . . . employers, there is a serious risk that such discovery can
become ‘an instrument for delay or oppression.’”). Beyond that, the Court also finds
Interrogatory No. 7 overly broad to the extent it seeks previous employment information dating
back to Plaintiff’s high school graduation.
Because the information sought in Interrogatory No. 7 regarding Plaintiff’s past
employment falls outside the scope of discovery, Plaintiff’s current response is sufficient.
The remainder of Interrogatory No. 7 asks about Plaintiff’s efforts to secure employment
following her termination. In response, Plaintiff provided a document that apparently lists all of
the employers to which she has submitted applications. (R. Doc. 21-3 at 17-20). Defendant
claims that this document does not clearly list the applications submitted by Plaintiff, or
otherwise explain her efforts to secure employment, following her termination. While the
document does indicate that it is a list of job applications, it is somewhat vague as to the dates on
which those applications were submitted and whether the application process was complete.
Plaintiff likewise does not indicate whether she went on any interviews, received any calls from
employers, or otherwise made contact with any employers while looking for work. (R. Doc. 21-7

at 4). Plaintiff must supplement her response to Interrogatory No. 7 to include this and any other
relevant information regarding Plaintiff’s post-termination job search. Therefore,
Defendant’s Motion to Compel is GRANTED in part to the extent Interrogatory No. 7
seeks information regarding Plaintiff’s efforts to secure employment after her termination.
Plaintiff must supplement her response to Interrogatory No. 7 within 14 days of this Order.
Request for Production No. 12:
Please Execute the Authorization to Release Employment Information, which form is attached.
Authorization to Release Employment Records
[A]ny and all employment records pertaining to [Plaintiff], including, but not limited to the
following:
1.
All employment records and/or sub-contractor records of whatever kind or nature;
2.
The entire personnel file and/or employment file;
3.
All records pertaining to any physical examination performed at any time in
connection with employment with company;
4.
All documents reflecting the rate of pay for at all times during employment and
the actual wages received during employment;
5.
Documentation setting forth any days missed from work and the wages lost or
sick leave lost or vacation leave lost as a result of missing that time;
6.
All incident, accident or injury reports pertaining to any accidents, or any
documentation of whatever kind or nature pertaining to any accidents on or off
the job;
7.
Employment application;
8.
Documentation pertaining to hire date, termination date, the reason for
termination and the dates and reasons for any lay off during employment; and
9.
All documentation of whatever kind or nature.
Response to Request for Production No. 12:
Plaintiff objects to this Request because it is overly broad, unduly burdensome, and not
reasonably calculated to lead to the discovery of admissible evidence in that Plaintiff’s
employment with other employers has no bearing on the claims or defenses in the instant case.
Plaintiff has produced, or will produce, information for employers which pertain to her wages
and benefits. Responding further, Plaintiff has not filed any claims or charges against any other
employers.
(R. Doc. 21-3 at 5, 13); (R. Doc. 21-7 at 4); (R. Doc. 41 at 5).
At the outset, the Court finds Request for Production No. 12 overly broad to the extent it
seeks information dating back to Plaintiff’s graduation from high school. Like Interrogatory No.

7, to the extent any information about Plaintiff’s past employment is deemed relevant and
discoverable in response Request for Production No. 12, that information will be temporally
limited to 5 years before Plaintiff’s employment with Defendant.
In its Motion, Defendant argues that Plaintiff’s employment records “are discoverable to
obtain information of past complaints, grievances, lawsuits, or charges with current and former
employers[;] information relating to her work performance[;] information relating to damages
and mitigation[;] and information relating to emotional distress.” (R. Doc. 32 at 1).
i.

Damages

According to Defendant, Plaintiff’s payroll and other employment records from her
current and previous employers is “critical for establishing damages and mitigation.” (R. Doc.
21-1 at 9). Other than this declaration, Defendant does not explain how this information is
“critical to establishing damages and mitigation.” Based on the elements of both Plaintiff’s
claim for damages and Defendant’s mitigation defense, the Court disagrees with Defendant’s
sweeping argument. Instead, the Court finds only portions of Plaintiff’s employment record with
her current employer are discoverable.
First, documents showing Plaintiff’s earnings while working for any previous employers
are not relevant to her claims for lost wages and compensatory damages. An award of back pay
under Title VII is meant to “restor[e]” the injured worker “to the economic position in which
they would have been but for the discrimination.” Pettway v. American Cast Iron Pipe Co., 494
F.2d 211, 252 (5th Cir. 1974); Jackson v. Host Intern., Inc., 426 F. App’x 215, 222 (5th Cir.
2011) (“Back pay commonly refers to the wages and other benefits that an employee would have
earned if the unlawful event that affected the employee’s job related compensation had not
occurred.”). The focus is necessarily on the employee’s compensation during his or her

employment with the defendant employer. Compensation and other employment records relating
to a previous employer5 would therefore be irrelevant to determine the amount of “back pay
otherwise allowable.”6 42 U.S.C. § 2000e-5(g)(1); see also Maxwell v. Health Center of Lake
City, Inc., 2006 WL 1627020, at *3 (M.D. Fla. June 6, 2006) (While a former employee’s salary
after employment “is relevant to the issue of mitigation of damages, Defendant has failed to
show why her previous earnings have any relevance to damages.”); see also Graham v. Casey’s
General Stores, 206 F.R.D. 251, 255 (S.D. Ind. 2002) (defendant failed to show why “salary
information from a previous employer is in any way relevant to damages” in an employment
discrimination case).
Back pay may be reduced, however, by “[i]nterim earnings or amounts earnable with
reasonable diligence by” the employee. 42 U.S.C. § 2000e-5(g)(1). First, Plaintiff’s rate of pay
at her current job is obviously relevant and discoverable evidence of “interim earnings,” which
may warrant a reduction of back pay. Second, an employer may defend against and reduce an
award of back pay by showing the employee failed to mitigate his or her damages. The burden is
on the employer to prove the (1) availability of substantially equivalent work; and (2) former
employee’s failure to exercise reasonable diligence to obtain it. West v. Nabors Drilling USA,
Inc., 330 F.3d 379, 393 (5th Cir. 2003).

Moreover, Plaintiff has already provided this information in response to Interrogatory No. 7. (Pl.’s Supp. Resp. to
Interrog. No. 7, R. Doc. 21-7 at 4) (“Plaintiff worked as a foster parent from 2009 through 2013 and earned $2,900
per month.”). In its correspondence with Plaintiff’s counsel, Defendant indicated that it was “willing to accept
Plaintiff’s job history and wages from 2005 to the present.” (R. Doc. 21-6 at 3).
5

The same is true of Plaintiff’s cause of action for unpaid wages under the FLSA. See 29 U.S.C. § 216(b) (An
employer who violates the FLSA “shall be liable to the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal
amount as liquidated damages.”).
6

“Substantially equivalent employment . . . affords virtually identical promotional
opportunities, compensation, job responsibilities, working conditions, and status as the position
from which the [former employee] has been discriminatorily terminated.” Sellers v. Delgado
College, 902 F.2d 1189, 1193 (5th Cir. 1990). “The point of comparison must be the
employment position with respect to which discrimination occurred.” Buckingham v. Booz Allen
Hamiltom, Inc., 64 F. Supp. 3d 981, 985 (S.D. Tex. 2014).
With these principles in mind, whether Plaintiff’s current position is substantially
equivalent to her job with Defendant is relevant to mitigation and obviously discoverable.
Plaintiff’s past employment, however, is not relevant nor is it proportional to the needs of this
case. See Boehms v. Crowell, 139 F.3d 452, 460 (5th Cir. 1998) (“[O]ur focus in a mitigation
analysis—and the base from which all comparisons about whether ‘reasonable efforts’ to obtain
comparable work are made—must be the employment position with respect to which
discrimination occurred.”). Therefore, to the extent Defendant seeks evidence of Plaintiff’s
current “promotional opportunities, compensation, job responsibilities, working conditions, and
status,” the Court will permit discovery of that information as discussed below.
ii.

Performance

Next, Defendant contends that Plaintiff’s employment records “may provide information
about Plaintiff’s work performance and whether Plaintiff was qualified for her position” with
Defendant. (R. Doc. 21-1 at 9). For that reason, Defendant contends the records are relevant to
Defendant’s legitimate non-discriminatory reason for terminating Plaintiff’s employment —
“that Plaintiff was not qualified for her position and performed poorly.” (R. Doc. 21-1 at 9).
This argument, however, is not persuasive.

In a disparate treatment claim, “the ultimate issue is the employer’s reasoning at the
moment the questioned employment decision is made.” Patrick v. Ridge, 394 F.3d 311, 319 (5th
Cir. 2004) (“a justification that could not have motivated the employer’s decision is not evidence
that tends to illuminate the ultimate issue and is therefore simply irrelevant”); see also Price
Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (courts should conduct a snapshot inquiry into
the employer’s motive at the exact instant the decision was made). Therefore, the “evidence
relevant to determining whether” an employer terminated an employee for legitimate nondiscriminatory reasons “is evidence that goes to what [the employer] knew at the time [it] . . .
recommended [the employee’s] termination.” Perez v. Tx. Dep't of Criminal Justice, Inst. Div.,
395 F.3d 206, 210 (5th Cir. 2004).
According to Defendant, Plaintiff was terminated for poor performance. However,
Defendant now seeks additional records to seemingly justify the reasons given for its previous
employment action. This position is misguided. To establish its given reason for terminating
Plaintiff, Defendant must present evidence of the actual sub-standard performance observed by
Defendant, not some other employer. Any new records from other employers could not have
motivated Defendant’s decision at the time it was made and are therefore irrelevant. EEOC v.
Texas Roadhouse, Inc., 303 F.R.D. 1, 3 (D. Mass. 2014) (employment records from other
employers were not relevant to show charging party’s “‘performance at other employers was
deficient,’” as “the factual issue at trial will be what Texas Roadhouse knew . . . at the time of
the alleged discrimination”).
In support of its argument, Defendant relies on cases in which district courts outside of
the Fifth Circuit have reached the opposite conclusion. While the Court recognizes that opposite
conclusions have been reached by these courts, the cases cited by Defendant are not persuasive.

First, many are inapposite as the records were only relevant because of some particular
allegation raised by the plaintiff, Lutzeier v. Citigroup Inc., 2015 WL 1853820, at *3 (E.D. Mo.
April 22, 2015) (relevant where plaintiff “alleged he would have had a 400% increase in
compensation had he stayed at [defendant’s company] and alleged reputational damages”),
Levitin v. Nationwide Mutual Ins. Co., 2012 WL 6552814, at *3 (S.D. Ohio Dec. 14, 2012)
(related to specific allegations made by plaintiff), Harroald v. Triumph Structure-Wichita, Inc.,
2011 WL 2118648, at *3 (D. Kan. May 27, 2011) (relevant because of the nature of the
particular claims and the types of damages requested), Kampfe v. Petsmart, Inc., 304 F.R.D. 554,
558 (N.D. Iowa 2015) (related to specific issues before the court); or because the defendant
claimed that the plaintiff was otherwise dishonest about his or her past employment during the
application process, Harroald, 2011 WL 2118648, at *3 (defendant claimed to have
“information demonstrating that Plaintiff was untruthful on her employment application”);
Lutzeier, 2015 WL 1853820, at *2 (same).
None of these circumstances are present here, as Defendant summarily claims the
evidence might potentially be relevant to Plaintiff’s performance. For example, Defendant has
not claimed that Plaintiff lied on her job application or was otherwise untruthful about her
qualifications. Simply put, Defendant has not given any reason to doubt the credibility of any
information provided by Plaintiff during either the hiring process or her employment.7
Moreover, other courts considering the issue, including district courts in the Fifth Circuit,
have reached the same conclusion as this Court. See Sanders v. Dalcraft, LLC, 2009 WL
1392602, at *2 (N.D. Tex. May 18, 2009) (rejecting argument that employment records from
former employers were relevant and discoverable because they “may show performance

7

The remaining cases cited by Defendant are not persuasive because the courts simply allowed discovery without
any real analysis or explanation.

deficiencies similar to those relied upon by [the defendant] to justify the termination”); Allen v.
CVS Pharmacy, Inc., 2013 WL 3873239, at *12 (S.D. Tex. July 25, 2013) (recognizing that “the
Supreme Court has cautioned that employers should not, as a routine matter, undertake extensive
discovery into an employee’s background or performance to resist claims of discrimination”)
(citing McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 363 (1995)); Liles v. Stuart
Weitzman, LLC, 2010 WL 1839229, at *3 (S.D. Fla. May 6, 2010) (rejecting argument that “a
plaintiff’s employment records from his former employer are relevant . . . to demonstrating poor
performance while employed by the defendant”); Maxwell, 2006 WL 1627020, at *4 (“[T]his
Court finds that documents showing Plaintiff’s prior work history . . . have no relevance on her
performance . . . during the time she was employed by Defendant. Moreover, Defendant fails to
offer, and the Court cannot conjure, any additional likely explanations as to why such evidence
could be relevant.”); EEOC v. Southern Haulers, LLC, 2012 WL 1768064 at *3 (S.D. Ala. May
17, 2012) (quashing subpoenas to charging party’s former employers where the “mere possibility
that [defendant] might discovery [sic] some evidence that relates to [charging party’s] job
qualifications . . . is insufficient grounds to permit the broad discovery of all personnel records
from every pre-incident employer”); EEOC v. Renaissance III Organization, 2006 WL 832504,
at *1 (N.D. Tex. March 30, 2006) (quashing subpoenas requesting “the wholesale production of
confidential employment records” from charging parties’ former employers and noting the
“privacy interests far outweigh any likely benefit”). Therefore, to the extent Defendant seeks
evidence of Plaintiff’s work performance or qualifications from prior employers, the Court finds
this information irrelevant and beyond the scope of permissible discovery.

iii.

Credibility

Defendant next argues that information in Plaintiff’s employment records about “past
complaints, grievances, lawsuits, or charges with current and former employers” are discoverable
“given that this information bears on credibility.” (R. Doc. 21-1 at 4). In support of this
argument, Defendant cites several cases finding evidence of past discrimination claims relevant
to credibility. (R. Doc. 21-1 at 4-5). In her opposition, Plaintiff does not address Defendant’s
argument that her past employment records may contain relevant evidence of credibility.
However, in her Response to Request for Production No. 12, Plaintiff affirmatively states that
she “has not filed any claims or charges against any other employers.” (R. Doc. 21-3 at 13).
Other courts have found that evidence showing a plaintiff has made similar complaints of
discrimination against other employers “could be relevant” and “possibly admissible” at trial to
show his or her “motive, state of mind, credibility, modus operandi, and to cast doubt on
plaintiff’s claim for emotional damages.” See Maxwell v. Health Center of Lake City, Inc., 2006
WL 1627020, at *4 (M.D. Fla. June 6, 2006); see also Graham, 206 F.R.D. at 256 (same). And
so, the Court finds that any past complaints of sexual harassment, sex discrimination and
retaliation made by Plaintiff between 2011 and the present are discoverable. Therefore, to the
extent Defendant seeks evidence of any past work-related complaints of sexual harassment, sex
discrimination or retaliation filed by Plaintiff between 2011 and the present, the Court will
permit discovery of this information, as discussed below.
iv.

Medical Records from Employers

Finally, Defendant claims that Plaintiff’s medical records sought through its authorization
for employment files are relevant to Plaintiff’s claim for emotional distress damages. However,
with respect to medical records, the authorization specifically limits itself to “All records

pertaining to any physical examination performed at any time in connection with employment
with company.” (R. Doc. 41 at 5) (emphasis added). The Court finds Plaintiff’s physical
examinations, if any, occurring in connection with her employment by other companies is not
relevant to her claim for emotional distress in connection with this case. Finally, to the extent
any mental health records may be responsive to Request for Production No. 12, the
discoverability of that information will be addressed along with Request for Production No. 10,
which seeks any and all of Plaintiff’s medical records between January 1, 2005 and the end of
litigation. Therefore, to the extent Defendant seeks medical records directly from Plaintiff’s
other employers under the proposed release, the Court will not permit such discovery.
For the reasons given above, IT IS ORDERED that Defendant’s Motion to Compel is
GRANTED in part and DENIED in part as it pertains to Request for Production No. 12 and
its accompanying Authorization to Release Employment Records (R. Doc. 41 at 5) must be
revised to comply with the restrictions immediately outlined by the Court. Defendant’s
Request for Production No. 12 is limited to the following information:
(a)

Plaintiff’s current promotional opportunities, compensation, job responsibilities,
working conditions, and status.

(b)

Any complaints of sexual harassment, sex-based discrimination or retaliation
made by Plaintiff against any employer between 2011 and the present.

Plaintiff is ORDERED to respond to Request for Production No. 12 within 14 days of
receiving Defendant’s revised Authorization to Release Employment Records.
C.

Medical Records

Defendant seeks information regarding Plaintiff’s medical treatment over the past 11-plus
years.

Interrogatory No. 9:
If you are requesting damages for mental anguish, humiliation, emotional stress or distress, pain
and suffering, or the like, please state whether you have seen any doctors, psychologists, social
workers, or other health care professionals with regard to such mental anguish, stress and the
like, and if so, identify them by name and address.
Response to Interrogatory No. 9:
Plaintiff objects to this Interrogatory because it requests information protected by the physicianpatient privilege. Plaintiff further objects to this Interrogatory because it is overly broad and not
reasonably calculated to lead to the discovery of admissible evidence in that Plaintiff is seeking
only general emotional distress damages. Responding further, Plaintiff did not seek medical
treatment per se, but consulted with the leaders of her church regarding her emotional distress.
Interrogatory No. 10:
Please provide the name, address and telephone number of any physician, doctor or health care
provider who has treated you in the last ten years and state the condition for which you were
treated and the date on which you received treatment.
Request for Production No. 10:
Please execute the Authorization for Release of Medical Records, which form is attached.
Authorization for Release of Protected Health Information
. . . I authorize Entity to disclose the following health information to the above specific party:
My medical records for the specific treatment dates from 1/1/05 to END OF LITIGATION.
The following specific portions of my medical records and health information: A Certified
Copy of the entire records, including but not limited to:
Office notes, correspondence, existing narrative reports, x-ray films and reports,
CT Scan films and reports, diagnostic films and reports, pulmonary function tests
and any tracings from these tests, pathology and pathology reports, etc., hospital
records, charts, labs results, HIV test results patient intake forms, initial reports,
billing records, appointment records, progress notes, handwritten notes, records of
prescriptions, patient orders, insurance claim forms, or any and ALL records
compiled by you or in your possession pertinent to the treatment of SHINAYE
WILLIAMS (DOB:_________); SSN:_________) from 1/1/05 through the
present.
Response to Interrogatory No. 10 and Request for Production No. 10:
Plaintiff objects to this Interrogatory because it requests information protected by the physicianpatient privilege. Plaintiff further objects to this Interrogatory because it is overly broad and not
reasonably calculated to lead to the discovery of admissible evidence in that Plaintiff is seeking
only general emotional distress damages and therefore her medical records are not discoverable
in this litigation.

(R. Doc. 21-3 at 6, 7, 12).
To begin, the Supreme Court has not recognized, at federal common law, the general
physician-patient privilege asserted by Plaintiff. Whalen v. Roe, 429 U.S. 589, 602 n.28 (1977)
(“[P]hysician-patient evidentiary privilege is unknown to the common law.”). Therefore,
Plaintiff’s general objections based on the “physician-patient privilege” are unfounded. Federal
common law does, however, recognize a psychotherapist-patient privilege protecting the
communications between a patient and a licensed psychotherapist made during the course of
treatment. Jaffe v. Redmond, 518 U.S. 1, 15 (1996). “The names of mental health providers . . .
and the dates of treatment, are not privileged.” Merrill v. Waffle House, Inc., 227 F.R.D. 467,
471 (N.D. Tex. 2005). As such, the information responsive to Interrogatory Nos. 9 and 10,
which is limited to the fact that treatment occurred, is not privileged as Plaintiff claims. Only
those documents responsive to Request for Production No. 10, which seeks Plaintiff’s medical
records for any type of physical or mental treatment over the past 11-plus years, could potentially
be covered by the psychiatric-patient privilege.
“When a plaintiff is seeking emotional distress damages, medical records related to the
claim are relevant . . . .” Bacharach v. Sun Trust Mortgage, Inc., 2015 WL 1843007, at *7 (E.D.
La. April 22, 2015). This remains true even where, as here, a plaintiff is only seeking ‘garden
variety’ emotional distress damages. Therefore, Plaintiff’s mental health records are relevant to
this litigation. Moreover, Plaintiff has placed her mental health at issue by seeking damages for
emotional distress. As such, the psychotherapist-patient privilege has been waived as to any
mental health treatment received that could inform the find of fact as to the source or extent of
any emotional distress. However, Defendant’s request for records dating back more than 11

years is overly broad. The Court will therefore temporally limit the request to mental health
records between 2011 and the present. Therefore,
IT IS ORDERED that Defendant’s Motion is GRANTED as to Interrogatory No. 9,
and Plaintiff must respond within 14 days of this Order.
Defendant’s Motion is GRANTED in part as to Request for Production No. 10, and its
accompanying Authorization for Release of Protected Health Information must be revised to
comply with the restrictions immediately outlined by the Court. Defendant’s Request for
Production No. 10 is limited to medical records:
(a)

Indicating mental health treatment;

(b)

Occurring between 2011 and the present.

Plaintiff must respond to Request for Production No. 10 within 14 days of receiving
Defendant’s revised Authorization for Release of Protected Health Information.
While mental health treatment related to Plaintiff’s emotional distress may be relevant,
Plaintiff’s remaining medical treatment is not. Defendant likewise does not argue that any
records other than those relating to Plaintiff’s mental health treatment for her emotional distress
is relevant to her claim. See Merrill, 227 F.R.D. at 473 (recognizing that “all medical records,
and especially those pertaining to treatment for purely physical conditions, will not necessarily
be relevant” to emotion distress damages). Therefore,
IT IS ORDERED that Defendant’s Motion to Compel is otherwise DENIED as to
Interrogatory No. 10 and to the extent Request for Production No. 10 seeks any records other
than those related to Plaintiff’s mental health treatment for her claimed emotional distress
damages.

D.

Attorney’s Fees

Finally, Defendant seeks an award of attorney’s fees associated with their Motion to
Compel. Rule 37(a)(5) allows for an award of expenses and attorney’s fees to be paid to the
moving party when a motion to compel is granted. However, when the motion is granted in part
and denied in part, as is the case here, the court may “apportion the reasonable expenses”
between the parties. Because the Motion was only partially granted and Plaintiff’s objects were
not unfounded, the Court will order both parties to pay their own costs associated with
Defendant’s Motion to Compel. Therefore, Defendant’s Motion to Compel is DENIED to the
extent it seeks an award of attorney’s fees and reasonable expenses under Rule 37(a).
IV.

CONCLUSION
For the reasons given above, Defendant’s Motion to Compel (R. Doc. 21) is GRANTED

in part and DENIED in part. Each party shall bear its own costs.
Signed in Baton Rouge, Louisiana, on February 18, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE