Brown v. West Corporation

Filing 183

PROTECTIVE ORDER - The plaintiff's motion for a protective order 166 is granted as to the issues of plaintiff's application, orientation, and training. The remainder of plaintiff's motion for a protective order is denied. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
REX BROWN,

)
)
Plaintiff,
)
)
v.
)
)
WEST CORPORATION, a Delaware )
corporation,
)
)
Defendant.
)
______________________________)

8:11CV284

PROTECTIVE ORDER

This matter is before the Court on the motion of
plaintiff Rex Brown (“Brown”) for a protective order (Filing No.
166).

Plaintiff seeks to prevent defendant West Corporation

(“West”) from deposing Brown’s subsequent employer Aegis
Communications, Inc. (“Aegis”).
Background
West contends that it seeks the requested deposition
for only two purposes: (1) to gather information supporting
West’s burden on the issue of whether Brown made the appropriate
efforts in mitigating his damages; and (2) to pursue allegations
that Brown has attributed loss of wages to Aegis -- wages that he
has also claimed as damages in the present case against West.
Because West limits its arguments to these issues, the Court will
limit its analysis to addressing whether a protective order is
appropriate to block discovery on these narrow grounds.

The

information sought appears to fall into two main categories: (1)
the circumstances of Brown’s performance that led to his
termination; and (2) details of Brown’s discrimination charge
against Aegis.

Plaintiff objects on the grounds of relevance,

the cumulative nature of the discovery, that the discovery is
sought only to harass the plaintiff, and the potential for undue
confusion of the jury.
Discussion
West’s mitigation of damages defense is inextricably
linked to Brown’s performance at Aegis and the reason for his
termination.

“A Title VII claimant has a duty to mitigate

damages by exercising reasonable diligence to locate other
suitable employment and maintain a suitable job once it is
located.”

E.E.O.C. v. Delight Wholesale Co., 973 F.2d 664, 670

(8th Cir. 1992) (emphasis added).

If Brown was terminated

because he failed to “exercise reasonable diligence” in
maintaining his employment at Aegis, West can argue that they are
not responsible for part of the period of unemployment that Brown
attributes to a discriminatory termination by West.1

1

What is not

Even if, as plaintiff contends, the standard for tolling
back pay due to loss of interim employment is higher than failure
to exercise reasonable diligence, defendants are entitled to
discovery on the circumstances of the termination to determine if
such circumstances meet that standard.
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relevant to this inquiry is Brown’s application, orientation, and
training as they do not relate to his performance.
Likewise, if Brown has alleged that Aegis is liable for
future wages because Brown’s termination from Aegis was also
based on discrimination, information supporting that theory would
also be relevant to the damages attributable to West in the
present case.

Moreover, Brown’s assertion that Aegis is

responsible for a certain period of back pay would be
inconsistent with a position taken in this case that West is
responsible for the same time period.
Brown has voluntarily submitted to an additional
deposition concerning his termination from Aegis and has allowed
Aegis to produce his personnel file.

While these are important

pieces of evidence bearing on these issues, they do not so
comprehensively and exhaustively cover the issue as to make the
deposition of a non-party unnecessarily cumulative.
Plaintiff has provided no evidence that defendants seek
this discovery simply to harass the plaintiff.

Further, the fact

that plaintiff is no longer employed by Aegis reduces any
potentially harassing effect that might have flowed from deposing
a current employer.
Plaintiff also argues that further discovery into this
issue will result in a “trial within a trial” that will tend to
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confuse the jury.

Damages are an integral part of the trial, and

the defendant has a right to pursue evidence that supports its
mitigation defense.

Any foreseeable confusion at this point is

outweighed by the right of the parties to fairly present their
case.

Accordingly,
IT IS ORDERED:
1) Plaintiff’s motion for a protective order is granted

as to the issues of plaintiff’s application, orientation, and
training.
2) The remainder of plaintiff’s motion for a protective
order is denied.
DATED this 5th day of February, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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