Opinion
Case No. 2:13-cv-469
01-24-2014
KAREN LANGENFELD, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., Defendant.
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel
OPINION AND ORDER
This matter is before the Court for consideration of Defendant Armstrong World Industries, Inc.'s objections to the Magistrate Judge's December 5, 2013 Order (ECF No. 27) and memorandum in support of those objections (ECF No. 28), Plaintiff Karen Langenfeld's memorandum in opposition (ECF No. 29), and Defendant's reply (ECF No. 30). For the reasons that follow, the Court GRANTS the Objections and DECLINES TO ADOPT the Magistrate Judge's December 5, 2013 Discovery Dispute Conference Order (ECF No. 26).
I. BACKGROUND
This case involves allegations of employment discrimination and retaliation. According to the Complaint, Plaintiff worked for Defendant for May 2010 until November 2012, at which time Defendant terminated her employment. Plaintiff alleges that, during the course of her employment, Defendant interfered with her right to take leave under the Family and Medical Leave Act, retaliated against her for requesting such leave, discriminated against her on the basis of gender, and retaliated against her after she complained about the alleged discrimination.
Prior to joining Defendant's employ, Plaintiff worked for two years at Aleris International ("Aleris"). Before that, Plaintiff worked at Goodyear Tire & Rubber Company ("Goodyear") for eighteen years. Defendant asserts (and Plaintiffs does not dispute) that Plaintiff's job duties at Aleris and Goodyear were similar to the job duties she performed while employed by Defendant. The question for this Court is whether information concerning Plaintiff's employment with Aleris and Goodyear is discoverable in this litigation.
The procedural history of this discovery dispute is as follows. On July 8, 2013, Defendant propounded an interrogatory on Plaintiff asking for the name and address of each of her previous employers, the job title and duties for each position held, the names and addresses of all former supervisors, whether Plaintiff was ever disciplined and the nature of such discipline, the dates of her employment, and whether her separation was voluntary or involuntary. (ECF No. 28-4.) Defendant also requested that Plaintiff sign releases to obtain copies of relevant records directly from prior employers. Plaintiff responded by identifying her prior employers, Aleris and Goodyear, but refusing to provide additional information. Plaintiff refused to sign the releases.
Defendant then issued subpoenas to Plaintiff's prior employers. The subpoenas seek:
Defendant also subpoenaed Volkswagen, where Plaintiff was employed from 1978 to 1988. According to Plaintiff, Defendant represented that it would withdraw the Volkswagen subpoena. Defendant did not mention the Volkswagen subpoena in its objections. The Court therefore will not consider the Volkswagen subpoena in this Opinion and Order.
[T]the following documents in your possession, custody and control relating in any way to the employment of Karen M. Langenfeld:(ECF No. 28-8.)
A complete and accurate copy of any documents regarding Karen M. Langenfeld, wherever maintained, in your possession, custody or control, including but not limited to, all records relative to the application for employment, employment, or termination of employment of Karen M. Langenfeld . . . for any period of time, including, but not limited to any employment file, personnel file, employment records relating to job duties, discipline, performance reviews, complaints and attendance maintained in connection with the employment of Karen M. Langenfeld.
Plaintiff (through counsel) wrote a letter to her prior employers, asking them not to respond to the subpoenas. Plaintiff has neither signed the releases nor fully answered Defendant's Interrogatory.
The parties raised the issue before the Magistrate Judge during a discovery conference on December 5, 2013. On December 9, 2013, the Magistrate Judge issued an order denying Defendant's request for the information and quashing the subpoenas ("Discovery Order"). The Discovery Order states: "An employment discrimination case plaintiff's job performance during prior employment is generally not discoverable because it is not relevant to how the employee performed while employed by the defendant . . . Defendant failed to articulate how plaintiff's work performance for previous employers might be relevant to the claims and defenses of the parties here nor how the discovery requests might lead to admissible evidence." (ECF No. 26, at 1-2.)
Defendant timely objected to the Discovery Order pursuant to Federal Rule of Civil Procedure 72(a). The Court now considers those objections.
II. STANDARD OF REVIEW
Under Rule 72(a), a party may object to a Magistrate Judge's order on nondispositive matters. The district judge must consider those objections and "modify or set aside any part of the order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a). "Review under Rule 72(a) provides 'considerable deference to the determinations of magistrates.' " In re Search Warrants Issued Aug. 29, 1994, 889 F. Supp. 296, 298 (S.D. Ohio 1995) (quoting 7 Moore's Federal Practice ¶ 72.03).
III. ANALYSIS
Rule 26 governs discovery in federal courts. Pursuant to Rule 26, "parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b). The parties dispute whether information regarding Plaintiff's prior employment is relevant to this dispute.
It goes without saying that relevance must be determined on a case-by-case basis. As such, the issue for this Court is whether— based on the specific facts of this case—information regarding Plaintiff's prior employment is relevant to either party's claims or defenses.
A. Information about Plaintiff's job performance, discipline, performance reviews, complaints, attendance, and/or termination of employment, as it relates to Plaintiff's prior employment with Aleris and Goodyear, is discoverable in this litigation.
One key fact is missing from the Discovery Order. In the course of discovery, Plaintiff produced two documents that purport to reflect handwritten notes stating: "Joe - I'm in between a rock + a hard place . . . I'm not sure what to do to succeed . . . Received the lowest rating in my career . . . ." (ECF No. 28-2 (emphasis added).) Another note purportedly dated 3/21 states: "Dave Haggarty - strictly confidential - between a rock and a hard spot - organization has been brutal - this yr [sic] I received the lowest rating in my career - ever . . . ." (ECF No. 28-3 (emphasis added).) If these notes are what they purport to be, then Plaintiff suggested to more than one individual that the she had received higher reviews during her prior twenty years of employment than she received during her two years of employment with Defendant.
That Plaintiff purportedly implicated her entire career at least twice suggests that she believes (or believed at some point) that her past performance reviews are relevant to her perception that Defendant discriminated against her. Those reviews therefore are relevant, for purposes of Rule 26, to her allegation that Defendant gave her "discriminatory work assessments." (Compl. ¶¶ 38 & 43.) Those reviews also are relevant to Plaintiff's credibility in claiming that she "satisfactorily performed her job duties." (Compl. ¶ 13.) Finally, those reviews may also be relevant to the testimony of any witness who may have heard and been affected by Plaintiff's statements suggesting that she never received poor reviews in the past.
The Court notes that Plaintiff's prior reviews—whether good or bad—may be inadmissible at trial. But "[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). Given that Plaintiff opened the door by referencing her prior reviews to two or more potential witnesses in this case, it would be premature to conclude that the requested information will be inadmissible for any purpose. As such, Defendant's discovery requests seeking information about Plaintiff's job performance, discipline, performance reviews, complaints, attendance, and/or termination of employment, as it relates to Plaintiff's prior employment with Aleris and Goodyear, are within the scope of Rule 26.
B. The Magistrate Judge's ruling that such information is not discoverable is contrary to law.
Because the Discovery Order would prevent Defendant from obtaining information to which it is entitled under Rule 26, the Discovery Order is "contrary to law" within the meaning of Rule 72(a). Analogous case law supports that conclusion.
In Levitin v. Nationwide Mutual Insurance Co., for example, a judicial officer from this district found that a plaintiff's prior performance reviews, evaluations, complaints, and reasons for termination "could bear on or could reasonably lead to other matters that could bear [on] the credibility of Plaintiff's allegations relating to his performance, his qualifications, and the legitimacy of Defendant's proffered bases for the performance ratings it assigned to Plaintiff." No. 2:12-cv-34, 2012 WL 6552814, at *3-4 (S.D. Ohio Dec. 14, 2012) (Deavers, Magistrate J.). Plaintiff does not attempt to distinguish Levitin in its memorandum in opposition to Defendant's objections. The Discovery Order similarly does not cite Levitin.
Given Levitin and similar cases, the Magistrate Judge's statement in the Discovery Order that "[a]n employment discrimination case plaintiff's job performance during prior employment is generally not discoverable because it is not relevant to how the employee performed while employed by the defendant" is not persuasive. (ECF No. 26, at 1.)
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In another employment discrimination case, Dunson v. Hooven-Dayton Corp., the Court allowed the defendant to discover the plaintiff's prior employment records to test the plaintiff's allegations that she "never had any performance issues, terminations, or discipline from other employers." No. 3:10-cv-441, 2012 U.S. Dist. LEXIS 23432, at *1-3 (S.D. Ohio Feb. 24, 2012). Plaintiff attempted to distinguish Dunson from the facts of this case by arguing that the Dunson plaintiff's prior employment records were only relevant "because the plaintiff's complaint contained an explicit allegation that she never had any performance issues, terminations, or discipline from other employers." (ECF No. 29, at 7.) But, as stated above, the facts of this case suggest that Plaintiff raised the issue of her prior employment reviews to potential witnesses in this case. This case therefore is analogous to Dunson on this point. Conversely, this case is less analogous to cases like McClendon v. TelOhio Credit Union, Inc., No. 2:05-cv-1160, 2006 U.S. Dist. LEXIS 57222, at *8-10 (S.D. Ohio Aug. 14, 2006) (Kemp, Magistrate J.), in which there was no suggestion that the plaintiffs put their prior employment reviews at issue.
The Court finds cases from other jurisdictions persuasive as well. In Baptiste v. Centers, Inc., for example, a judicial officer from the Middle District of Florida cited Levitin and ruled that a plaintiff's prior employment records were discoverable. No. 5:13-CV-71-Oc-22PRL, 2013 U.S. Dist. LEXIS 87550, at *6 (M.D. Fla. June 21, 2013). The court noted: "Although the Court has questions about the ultimate admissibility of evidence related to past job performance, the undersigned concludes . . . in light of the broad scope of discovery, that the performance records are discoverable." Id. That rationale is especially persuasive where, as here, the plaintiff arguably put her past job performance at issue and made comments about that performance to potential witnesses in this case.
The Court acknowledges that case law supports both sides of this issue. Compare Levitin, 2012 WL 6552814, at *3-4; Baptiste, 2013 U.S. Dist. LEXIS 87550, at *6 with Sanders v. Dalcraft, LLC, No. 3-09-CV-0307, 2009 U.S. Dist. LEXIS 41710, at *4-5 (N.D. Tex. May 18, 2009) (holding that a defendant in an employment discrimination case was not entitled to disciplinary records and discharge or termination documents from the plaintiff's former employers). But, given the fact that Plaintiff may have put her prior employment history at issue, the Court finds that cases like Levitin, Dunson, and Baptiste present a sounder interpretation of Rule 26 as it relates to the facts of this case.
C. Some limitations on the subpoenas are appropriate.
In their memorandum in opposition to Defendant's objections, Plaintiff argues that the subpoenas are "so broadly worded—e.g., 'any documents regarding Karen R. Langenfeld'—that they encompass benefits and medical information related to third parties (for example, any family members covered by the insurance Langenfeld held through her former employers)." (ECF No. 29, at 9.) Defendant replied that those concerns are unfounded, as the subpoenas are only intended to seek "any employment file, personnel file, employment records relating to job duties, discipline, performance reviews, complaints and attendance maintained in connection with the employment of Karen M. Langenfeld." (ECF No. 30-6.)
The Court agrees with Defendant that, consistent with its analysis above, Plaintiff's "employment file, personnel file, [and] employment records relating to job duties, discipline, performance reviews, complaints and attendance" are discoverable. That information does not implicate the privacy concerns Plaintiff raises (such as family members' medical history). To the extent Plaintiff is arguing that the employment file itself raises privacy concerns, the Agreed Protective Order (ECF No. 21, entered Sept. 23, 2013) should alleviate those concerns.
The Court agrees with Plaintiff, however, that the subpoenas as written could implicate more than just Plaintiff's "employment file, personnel file, [and] employment records relating to job duties, discipline, performance reviews, complaints and attendance." Defendant does not present any compelling arguments (indeed, they do not present any argument) as to why they should be entitled to information regarding Plaintiff's prior employment that exceeds this limited category of information.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's objections to the Magistrate Judge's December 5, 2013 Order (ECF No. 27) and DECLINES TO ADOPT the Magistrate Judge's December 5, 2013 Discovery Dispute Conference Order (ECF No. 26). Defendant is ORDERED to revise any outstanding discovery regarding Plaintiff's prior employment that exceeds the scope of this Opinion and Order.
IT IS SO ORDERED.
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GREGORY L. FROST
UNITED STATES DISTRICT JUDGE