Employment Law Daily Employee must authorize current employer to produce limited records for his suit against prior employer
Thursday, January 25, 2018

Employee must authorize current employer to produce limited records for his suit against prior employer

By Kathleen Kapusta, J.D.

An employee who was allegedly denied post-settlement job opportunities with his former employer after he settled his age, race, and gender discrimination claims must sign a narrowly tailored authorization allowing his present employer to produce certain employment records including his resume, application, and salary and benefits information, a federal district court in New York ruled, granting the former employer’s motion to compel. His claim for damages put the issue of his subsequent employment earnings squarely at issue and his concerns over the effect the authorization might have on his current employment relationship did not override the employer’s entitlement to production of relevant information (O’Garra v. Northwell Health fka North Shore Long Island Jewish Medical Health System, Inc., January 22, 2018, Shields, A.).

Twelve years after he started working at Northwell Health, the employee settled employment discrimination claims against the company. After the settlement, he was allegedly denied several job opportunities. He then sued, claiming direct discrimination as well as discrimination in retaliation for his prior claim. He subsequently accepted a job with another company that, he asserted, was for the same positon for which he had applied “countless times” at Northwell.

Discovery requests. After engaging in extensive discovery, Northwell sought to have the employee execute an authorization allowing it access to certain of his post-termination employment records as well as more complete discovery responses. For his part, the employee sought additional document production and responses to interrogatories.

Rule 26. Rule 26 of the Federal Rules of Civil Procedure, which sets forth the scope of discovery, has been amended on several occasions in an attempt to strike the proper balance between the need for evidence and the avoidance of undue burden or expense. Pursuant to the most recent amendment, effective December 1, 2015, the scope of discovery is defined to consist of information that is relevant to the parties’ “claims and defenses,” observed the court, noting that the discretionary authority to allow discovery of “any matter relevant to the subject matter involved in the action” has been eliminated. Further, the rule defines permissible discovery to consist of information that is, in addition to being relevant “to any party’s claim or defense,” also “proportional to the needs of the case.”

Notably absent from Rule 26, observed the court, “is the all too familiar, but never correct, iteration of the permissible scope of discovery as including all matter that is ‘reasonably calculated to lead to’ the discovery of admissible evidence.” This language was intended only to make clear that discovery was not limited by the concept of admissibility, the court explained.

Fishing expedition? Turning to the employer’s motion to compel production of the employee’s current employment records, the court noted that the employee refused to sign the proposed authorization allowing Northwell to obtain records from his current employer, contending that it should not be allowed to “fish through” his entire personnel file. Further, he argued, asking his current employer to sign any authorization would alert it to this lawsuit, and thereby subject him to possible retaliation.

Agreeing that the wage information was relevant to the issue of mitigation of damages, the employee offered to provide tax information showing his wages and benefits as well as his letter offer of employment, resume, and copies of letters of reference he submitted to his current employer. There was no question, said the court, as to the discoverability of documents showing wages and benefits earned at his current employer. Rather, the issue was whether he should be compelled to sign an authorization that might jeopardize his current employment relationship.

Squarely at issue. Explaining that the employee’s damages claim put the issue of his subsequent earnings squarely at issue and that his concerns over the authorization’s effect on his current employment relationship did not override Northwell’s entitlement to production of relevant information, the court determined that Northwell need not be compelled to rely on his statements regarding his offer and benefits. Rather, he should be compelled to execute an appropriate authorization for salary and related benefit information. Moreover, the court pointed out, the scope of the records sought was particularly relevant as he alleged specifically that the position he was offered was “the same position” to which he applied for “countless times” at Northwell.

Narrowly tailored. While Northwell was “certainly entitled to discovery of information as to the nature of the job offered, Plaintiff’s qualifications and his application,” the authorization had to be narrowly tailored to authorize “the production of all documents showing Plaintiff’s salary, compensation and/or benefits associated with his employment with Optum360 from inception to date, Plaintiff’s application for his initial employment with Optum360 including his resume, application, and any references or recommendations submitted on his behalf and his offer letter.”

Motion to compel complete copies of documents. As to Northwell’s assertion that a large number of documents produced by the employee were incomplete because only portions of emails were produced, certain copies were cut off at the bottom, and certain pages produced appeared to be portions of a larger document that was not produced, the court pointed out that issues as to whether or not complete copies of any document are in the possession of a party are matters that the parties ought to be able to resolve on their own. Because the parties here were unable to do so, the court ordered the employee to review his production and produce complete copies of all documents produced to the extent such documents were in his possession, custody, or control.

Employee’s motion to compel. Finally, turning to the employee’s motion to compel the production of additional documents and responses to interrogatories, the court first found that his request for documents, including a document indicating the racial profile of all managerial and supervisory employees from 2009-2015, was vastly overbroad and beyond the needs of the case, which was limited to alleged failures to promote that post-dated the 2014 settlement agreement.

As to the jobs actually at issue, Northwell produced extensive documents and responses. To the extent possible, however, the court directed it to identify the gender, age, and race of each applicant identified in its responses. Denying the employee’s request to access the entire personnel files of all individuals who applied for and received offers for the promotions at issue, the court explained that requiring Northwell to produce full personnel files for each applicant would amount to a disproportional fishing expedition.

Interested in submitting an article?

Submit your information to us today!

Learn More