Perez v. Regional Environmental Demolition, Inc. et al
ORDER denying 29 Motion to Compel. Signed by Hon. H. Kenneth Schroeder Jr. on 6/23/2017. (KER)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THOMAS E. PEREZ, Secretary of Labor,
United Stated Department of Labor,
DEMOLITION, INC., et al.,
DECISION AND ORDER
This case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #6.
Plaintiff commenced this action alleging that defendants unlawfully
retaliated against employee Lucian Fermo in violation of section 11(c) of the
Occupational Safety and Health Act (“OSHA”), when they fired him in June of 2014
after he complained to his employer about unsafe working conditions. Dkt. #1. That
statute provides, in relevant part: “No person shall discharge or in any manner
discriminate against any employee because such employee has filed any complaint or
instituted or caused to be instituted any proceeding under or related to this chapter.” 29
U.S.C. § 660(c)(1). The statute provides that the Secretary of Labor may bring a cause
of action in the district court to restrain violations of 29 U.S.C. § 660(c)(1) and to obtain
“all appropriate relief including rehiring or reinstatement of the employee to his former
position with back pay.” 29 U.S.C. § 660(c)(2). In this action, plaintiff seeks payment to
Lucian Fermo of lost wages and compensatory damages plus pre-judgment interest
from the date of discharge; front pay; emotional and financial distress damages and a
reasonable amount of punitive damages; expungement of Lucian Fermo’s employment
records of all references to the circumstances in this matter; injunctive relief against the
defendants preventing future violations of 29 U.S.C. § 660(c)(1); an award of costs to
the Department of Labor; and an order that defendants prominently post, for 60
consecutive days, a notice stating that they will not discharge or otherwise discriminate
against employees for activities protected by 29 U.S.C. § 660(c)(1). Dkt. #1.
Defendants issued a subpoena for the deposition of Lucian Fermo, which
was conducted on December 20, 2016, with Mr. Fermo represented by a personal
attorney. Dkt. #29, ¶ 9. At his deposition, Mr. Fermo testified that he sought treatment
for emotional distress approximately six months after his termination for a condition he
had previously experienced prior to his employment with defendants. Dkt. #29, ¶ 14.
Mr. Fermo also testified that he was injured on the job while employed subsequent to
his termination by defendants and was receiving workers’ compensation as of the date
of his deposition, potentially impacting his claim for future wages.
Subsequent to the deposition, as discussed on the record at the
deposition, defendants sent a letter to Mr. Fermo’s personal attorney enclosing
authorizations for release of employment and medical records. Dkt. #29, ¶¶ 15-16 &
Dkt. #32-1, p.2. Plaintiff’s counsel was copied on the letter enclosing the
authorizations. Dkt. #29-3, p.2. By letter dated February 7, 2017, plaintiff objected to
the information sought as inadmissible, irrelevant and overly broad. Dkt. #29-5. By
letter dated February 7, 2017, defendants responded that
The request for authorizations deals directly with the issue of
damages which are being requested by the Plaintiff in this
matter, on behalf of your client. The issues of why your
client is not working, his ability to work or not, why he cannot
work, what he did when he was working, his history of
wages, etc., are all relevant to the issues of damages.
Dkt. #29-6. Defendants noted that although Mr. Fermo “may not technically be a
named party to this action, he is the party of interest and the main witness for Plaintiff
and benefactor from his testimony.” Dkt. #29-6.
Currently before the Court is defendants’ motion to compel: (1)
employment records from Empire Dismantlement Corporation, TCI Cable/Comcast
Corporation, Time Warner Cable and First Call Communications; (2) authorizations for
prescription records from Walgreens and Rite Aid; and (3) authorizations for medical
records from Dr. Fuleki, Dr. Panzarella and Horizon Health Services. Dkt. #29-1. Mr.
Fermo joins in plaintiff’s opposition to defendants’ motion. Dkt. #33.
Setting aside the procedural issues regarding the timing of defendants’
demands; service of those demands upon Mr. Fermo’s personal attorney rather than
the plaintiff and by letter request rather than subpoena; and defendants’ good faith
attempt to resolve the discovery dispute with plaintiff prior to the filing of this motion,
each of which are sufficient to render defendants’ request for sanctions baseless, the
Court will instead address the appropriate scope of discovery from Mr. Fermo.
Defendants seek employment records from employers for whom Mr.
Fermo worked both before and after his employment with defendants. Dkt. #31, pp.3-4.
Plaintiff objects to defendants’ demand for personnel files from every employer for
whom Mr. Fermo has worked since 1989 in order to defend against the Secretary’s
back wage demand, which is limited to the hours and wages earned at Regional
Environmental Demolition. Dkt. #31, p.8, n.5. Plaintiff notes that it provided W-2 wage
statements for Mr. Fermo’s employment after Regional Environmental Demolition and
defendants deposed Mr. Fermo on these issues. Dkt. #31, p.8, n.5.
The Court finds records from employers prior to Regional Environmental
Demolition, to wit, First Call, Time Warner and TCI Cable, irrelevant to this litigation.
Moreover, the Court finds defendants’ request for “the full contents” of Mr. Fermo’s
personnel file overbroad. With respect to Mr. Fermo’s susbequent employment, the
Court relies upon plaintiff’s representation that it disclosed W-2 statements and
determines that this is sufficient to calculate loss of income following Mr. Fermo’s
termination from Regional Environmental Demolition. As a result, this aspect of
defendants’ motion is denied.
Medical and Prescription Records
Defendants argue that Mr. Fermo’s medical records, including records
relating to mental health treatment, are relevant to defend against plaintiff’s emotional
distress claim. Dkt. #32-4, p.3. Plaintiff declares that it “does not intend to call an
expert at the trial and that the Secretary’s Rule 26(a) disclosures make it clear that the
government is only pursuing garden variety emotional damages, which do not require
expert testimony.” Dkt. #31-1, ¶ 17. In reliance upon plaintiff’s representation, the
Court determines that disclosure of plaintiff’s medical and prescription records are not
warranted. However, the Court further determines that such representation precludes
testimony as to any medical treatment allegedly necessitated by defendants’
termination of his employment. As to medical records pertaining to an injury Mr. Fermo
sustained on the job after his termination by defendants, the Court agrees that they are
irrelevant to any of the issues presented in this litigation.
For the foregoing reasons, defendants’ motion to compel (Dkt. #29-1), is
denied. The Court declines plaintiff’s request (Dkt. #31, pp.12-14), pursuant to Rule
37(a)(5)(B), for reasonable expenses, including attorney’s fees, incurred in the
opposition of this motion.
Buffalo, New York
June 23, 2017
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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