Bowers v. Sears, Roebuck and Co.

Filing 35

ORDER DENYING 23 Motion for Protective Order and Motion to Quash. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ARTHUR BOWERS,
Plaintiff,

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V.
SEARS, ROEBUCK AND CO.,
Defendant.

A-13-CV-348-AWA

ORDER
Before the Court are Plaintiff’s Motion to Quash and Motion for Protective Order (Dkt. No.
23) and Defendant’s Opposition (Dkt. No. 24). Generally, Plaintiff Arthur Bowers (“Bowers”)
contends that the discovery subpoenaed by Defendant Sears, Roebuck and Co. (“Sears”) is
“invasive, overly broad, and not relevant or reasonably calculated to lead to the discovery of
admissible evidence.” Dkt. No. 23 at 2. After reviewing the parties’ arguments, the Court concludes
that Bowers’s Motion to Quash (Dkt. No. 23) should be DENIED. However, although the
information is discoverable, the Court recognizes that personnel-related information from Bowers’s
previous employers may contain sensitive non-public material. Accordingly, in conjunction with
this Order, the Court will also enter a Protective Order in this case, thereby allowing the parties to
keep the information private and confidential.
I. BACKGROUND
This cases arises from events which occurred throughout the course of Bowers’s employment
as an Assistant Store Manager with Sears from June 2011 through June 2012. Dkt. No. 1, ¶ 5.
Bowers alleges that while he was employed with Sears, he was subject to, and witnessed, pervasive
sexual harassment and experienced a hostile work environment resulting from the actions of the
Store Operations Manager. Id. ¶ 6. On or about March 19, 2012, Bowers states that he contacted

Sears’s Human Resources hotline to complain about the sexual harassment. Id. ¶ 7. Bowers also
purportedly submitted a written complaint, detailing the misconduct. Id.
Bowers contends that prior to his complaint, the annual review process at Sears had already
started. Id. ¶ 8. Bowers received an excellent rating on or about April 5, 2012. Id. In the
meantime, Bowers’s District Manager, who had been handling his sexual harassment complaint,
passed away and Bowers’s sexual harassment complaint was transferred to a new General Manager.
Id. On or about May 23, 2012, Bowers allegedly received notification that his performance was now
subpar and he was placed on a 90-day Performance Improvement Plan. Id. ¶ 9. Bowers states that
approximately one month later, prior to the completion of the 90-day period, he was fired. Id.
Given the timing of his second review and his termination, Bowers charges that Sears has violated
Title VII by wrongfully retaliating against him for making complaints about sexual harassment and
a hostile work environment. Id.
II. ANALYSIS
In his Motion to Quash and for Protective Order, Bowers objects to Sears’s request for
personnel-related records from Bowers’s employers, both prior to and after his employment with
Sears. More specifically, Sears has issued a Notice of Deposition on Written Questions to the
custodian of records for the following entities: (1) Wal-Mart Stores, Inc., Bowers’s current place of
employment; (2) Ross Stores, Inc.; (3) Dollar Tree Stores, Inc.; and (4) Family Dollar Stores. See
Dkt. No. 23 at 1–2. Although Bowers does not object to discovery regarding payroll and benefit
information for any employment held by him from June 2009 through the present, he does contend
that any additional personnel-related information would be (1) invasive of his privacy rights;
(2) overly broad; and (3) not relevant or reasonably calculated to lead to the discovery of admissible

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evidence. Id. at 2. Bowers also charges Sears with conducting a fishing expedition in seeking this
discovery. Id. Relatedly, Bowers also seeks a protective order prohibiting Sears from subpoenaing
any documentation from Wal-Mart Stores, Inc., or any place of employment beginning June, 2009,
with the exception of: (1) documents concerning moneys paid to Bowers during this time, and
(2) any employment contract or documents reflecting the terms of Bowers’s employment. Id. at 3.
In response, Sears argues that the information is relevant to Bowers’s claim that Sears’s
stated reasons for its actions were merely pretext for retaliating against him. Sears notes that
Bowers has a history of filing wrongful termination suits against his employers. See Dkt. No. 24,
Exhibit 2. Furthermore, Sears contends that it has raised the affirmative defense of after-acquired
evidence, which can be used to limit economic damages. Id. at 4. Sears highlights that its discovery
has revealed that Bowers may have made misrepresentations on his application for employment with
Sears. Id. at 5. Additionally, Sears submits that Bowers’s personnel-related records with his
previous employers: (1) will shed light on his credibility; (2) are relevant to any damages assessment
in this case; and (3) could demonstrate a pattern of filing frivolous wrongful termination suits against
his employers. Id. at 5–7. Finally, Sears argues that any privacy interest claimed by Bowers is
outweighed by Sears’s need to discover the information requested. Id. at 7–8.
After evaluating the parties’ arguments, the Court agrees that the information sought by
Sears is discoverable in this case. Federal Rule of Civil Procedure 26(b) provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or
defense.” FED. R. CIV. P. 26(b). “Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Here,
the Court concludes that the information sought by Sears is relevant to the claims made by Bowers.

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As an initial matter, by alleging that the stated reasons for his termination were merely a pretext for
retaliating against him, Bowers has effectively put his job performance abilities at issue. Moreover,
information related to Bowers’s earnings is relevant to the determination of potential damages in this
case. Although Bowers asserts that he has already produced earnings information from June 2009
through the present, his complaint clearly places no time limits on his damages claim. See Dkt. No.
1, ¶ 17. Bowers simply states that he is seeking “actual damages in the form of lost wages and
benefits (past and future).” Id. Bowers also provides no explanation for why he decided to provide
only information from June 2009 until the present. Given that the provisions of Rule 26 “are to be
broadly and liberally construed,” Burns v. Thiokol Chem. Corp., 483 F.2d 300, 304 (5th Cir. 1973),
the Court is unpersuaded that the discovery sought by Sears in this case should be prohibited,
particularly where Bowers’s own complaint lacks a time frame.
Additionally, the Court does not view Sears’s requests as a “fishing expedition.” Rather,
Sears has identified specific reasons for seeking personnel-related information from Bowers’s
previous places of employment. In particular, Sears highlights a discrepancy between Bowers’s
application for employment with Sears and his interrogatory answers. Although Bowers claims that
he voluntarily quit his job at the Dollar Tree Stores, Inc., on his application with Sears, he clearly
states in his interrogatory answers that he filed a lawsuit against Dollar Tree for wrongful
termination in 2007.1 See Dkt. No. 24, Exhibits 2, 3. Furthermore, Sears has not requested

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Further discovery, particularly regarding this discrepancy, is also relevant to the extent
Sears seeks to assert an affirmative defense of after-acquired evidence. “Where an employer seeks
to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was
of such severity that the employee in fact would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge.” McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352, 362–63 (1995). Should Bowers have made misrepresentations on his application for
employment with Sears, such information would be relevant to any potential remedy sought by
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documents from all of Bowers’s previous employers. Indeed, Bowers’s interrogatory answers
indicate that, at the very least, Bowers had worked for Popeye’s Chicken at some point in the early
1990s. See Dkt. No. 24, Exhibit 2.
Finally, aside from his conclusory assertions, Bowers has failed to provide any explanation
for why the sought-after discovery would violate his privacy interests, particularly where he has
placed such issues in question. Furthermore, given that the Court will enter a standard protective
order allowing the parties to keep his personnel-related records confidential and limit their usage
to this litigation, the Court concludes that any privacy interest is outweighed by Sears’s need for full
disclosure of relevant information.
III. CONCLUSION
In accordance with the preceding discussion, the Court hereby DENIES Arthur Bowers’s
Motion to Quash and Motion for Protective Order (Dkt. No. 23).
SIGNED this 29th day of August, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

Bowers in this case. See Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106, 1108–09 (5th Cir. 1995).
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