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Queen v. City of Bowling Green

United States District Court, W.D. Kentucky, Bowling Green Division

September 28, 2017

JEFFREY QUEEN PLAINTIFF
v.
CITY OF BOWLING GREEN And DUSTIN ROCKROHR DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Jeffrey Queen has moved to quash the Rule 45 subpoenas that Defendants' propose to serve on his former employers (DN 23). Queen has also moved to quash Defendants' Rule 34 document request for his tax returns from 2011 through the date of trial (Id.). Defendants the City of Bowling Green and Captain Dustin Rochrohr (where appropriate they will be referred to collectively as “the City”) have filed an objection and response to the motions (DN 26). Queen has filed a reply in support of his motions (DN 27). This matter is ripe for determination.

         Background

         Queen names the City of Bowling Green and Captain Dustin Rochrohr as Defendants in his complaint asserting hostile work environment claims under the Kentucky Civil Rights Act (KCRA) (KRS 344, et seq).; a constructive discharge claim; a claim under the Family and Medical Leave Act (FMLA) (29 U.S.C. § 2615); and a retaliation claim under KCRA (KRS 344, et seq.) (DN 1-2). The complaint alleges that the City's Fire Department hired Queen as a firefighter in September 2011 and, throughout his employment, it permitted co-workers and management to make, on a pervasive basis, inappropriate comments related to both his religious beliefs and perceived sexual orientation (Id. PageID # 6-13). Further, Queen asserts that the City's Fire Department permitted his co-workers and management to make, on a pervasive basis, denigrating comments about the race, religion, and ethnicity of the citizens of the City (Id.). Queen alleges retaliation after he complained to his supervisor, Rochrohr, in 2012 (Id.). Further, Queen accuses the City's Fire Department of failing to investigate and address the problem after he filed anonymous complaints with its Human Resources Department in 2013 and 2014 (Id.). He also accuses the City of failing to take action after he filed a complaint with its ethics hotline in 2015 (Id.). Queen alleges that due to significant emotional distress, he had to take a leave of absence under the FMLA in February 2016 (Id.). Queen claims that while he was on the FMLA leave of absence, management with the City's Fire Department improperly subjected him to multiple requests for information regarding his medical condition (Id.).

         In compliance with Fed.R.Civ.P. 45(a)(4), the City provided Queen with prior written notice of its intent to obtain his personnel records by serving a subpoena duces tecum on each of the following non-party entities: Rivergate Toyota, Action Nissan, Cheddars Restaurant, Verizon Wireless, Cellular Plus, and Sprint (DN 23-2).[1] Each proposed subpoena duces tecum requests “a certified copy of the complete personnel file of Jeffrey Sean Queen, including but not limited to payroll records, employee reprimand(s), and/or disciplinary forms . . .”[2] (Id. PageID # 112-17).

         Pursuant to Fed.R.Civ.P. 33 and 34, the City has propounded interrogatories and requests for production of documents to Queen (DN 23-5). Request No. 7 seeks complete copies of Queen's “personal and business federal and state income tax returns, with all schedules, for the years 2011 through 2015 and all years thereafter” (Id. PageID # 144).

         Arguments of the Parties

         1. Queen's Argument

         Citing Fed.R.Civ.P. 26(b)(1), Queen contends that the City cannot meet its burden of demonstrating that his prior employment records and tax returns are relevant (DN 23-1 PageID # 163-). He contends that the employment records will not provide relevant information regarding his efforts or ability to mitigate his damages because his work in sales and food service is not substantially similar to his firefighting work (Id.). He indicates that records pertaining to his performance history in the sales and food service jobs will not provide relevant information to his performance as a firefighter (Id.). Queen indicates because he has already verified that he has not made any prior complaints of harassment or discrimination, the subpoenas are nothing more than an impermissible fishing expedition (Id.).

         Queen contends that his tax returns prior to 2016 will not provide relevant information regarding mitigation because the issue is what he has earned since his constructive discharge in 2016 (Id.). Further, Queen asserts that his tax returns from 2016 through trial contain information that is not relevant to his KCRA and FMLA claims because they include his spouse's income, investment income and losses, charitable donations and other deductions, child care, and other personal information (Id.). All that is relevant to his KCRA and FMLA claims is his income earned through employment since his constructive discharge (Id.). Therefore, Queen contends it is sufficient that he has produced his W-2s and 1099s and is willing to supplement each year until the case resolves (Id.).

         2. The City's Response

         Citing the doctrines of waiver and estoppel, the City argues that Queen should be precluded from objecting to their efforts to obtain his employment records after he successfully argued for and obtained the employment records of Rochrohr and City firefighters Eric Smith, Paul Campbell, and Donnie Frye (DN 26 PageID # 173-75). The City asserts that the employment records need not be admissible in evidence at trial to be discoverable under the relevance standard in Fed.R.Civ.P. 26(b)(1) (Id. PageID # 175-77, 180-84). Further, the City contends that Queen's employment records probably contain information relevant to both liability and damages, are not subject to a privilege, and pertain to only four years of records from six different employers (Id.). It points out that subpoenaing these employment records from the six different employers imposes no burden or expense on Queen (Id.). The City argues while Queen styles his motion as a “motion to quash, ” it is a motion for protective order and he has not satisfied the “good cause” standard under Fed.R.Civ.P. 26(c) (Id. PageID # 177-79). It asserts that the Court should not be swayed by Queen's general assertions that the subpoenas are a “fishing expedition” and that the employment records will not offer information relevant to his claim of pervasive harassment during his employment with the City's Fire Department (Id. PageID # 179-80).

         The City contends that complete copies of Queen's tax returns are relevant within the meaning of Fed.R.Civ.P. 26(b)(1) because he is claiming lost wages (Id. PageID # 184-85). It also points out that the protective order already in place provides adequate safeguards and protections to both the employment and tax records (Id. PageID # 185-86). The City encourages the Court not to limit or restrict the scope of the discovery requests for Queen's employment and tax records as it may impact the discovery of information highly relevant to the claims and defenses in this case (Id. PageID # 186-87). Finally, the City argues that the information it seeks through the discovery requests may be relevant to Queen's credibility and could actually help him (Id. PageID # 187-88).

         3. Queen's Reply

         Queen argues that when discovery is sought through a subpoena, a motion to quash the proposed subpoena is appropriate under Fed.R.Civ.P. 45(d)(3) (DN 27 PageID # 223-24). He asserts that Rule 26(b)(1) applies to both the subpoenas and the Rule 34 document request, and under this Rule the City must demonstrate the documents it seeks are both relevant and proportional (DN 27 PageID # 223-24). Queen contends that the subpoenas seek documents that have no relevance to the claims and defenses in this case, as there is nothing about his prior sales and food services work that pertains to his ability to fight fires or his ability to mitigate his damages because they are not substantially equivalent positions (Id. PageID # 224-25, 229-30). Additionally, Queen believes that the subpoenas are burdensome to him because they result in an unnecessary invasion of his privacy as the requested records may include insurance, tax, and medical information (Id.). Queen claims that the City's judicial estoppel and waiver argument is not applicable to this discovery dispute (Id. PageID # 225-28). Queen argues because the employment records are not relevant under Rule 26(b)(1), the Court need not consider whether “good cause” exists to issue a protective order (Id. PageID # 228-29). Queen disputes that his prior employment records will shed light on his credibility (Id. PageID # 230-31). Queen asserts that the court should protect his tax records from discovery because his 1099s and W-2s provide exactly the information that is discoverable regarding subsequent earnings (Id. PageID # 231-32).

         Discussion

         1. Queen's Motion to Quash as to the Employment Records

         Motions to quash subpoenas are governed by Rule 45(d)(3).[3] See Black v. Kyle-Reno, No. 1:12-CV-503, 2014 WL 667788, at *1 (S.D. Ohio Feb. 20, 2014). Typically, a party does not have standing to quash or object to a Rule 45 subpoena served on a non-party, unless the party can demonstrate a privilege or other personal right in regard to the requested documents. See e.g., Sys. Prods. & Solutions, Inc. v. Scramlin, No. 13-CV-14947, 2014 WL 3894385, at *7 (E.D.Mich. Aug. 8, 2014) (addresses standing to quash); Iron Workers' Local Pension Fund v. Watson Wyatt & Co., Nos. 04-CV-40243, 07-CV-12368, 2009 WL 648503, at *6 (E.D.Mich. Mar. 10, 1999) (addresses standing to object). Here, the Court finds that Queen has standing to quash because of a personal interest in his employment records that are held by these six former employers. See Halawani v. Wolfenbarger, No. 07-15483, 2008 WL 5188813, at *1 (E.D. Mich. Dec. 10, 2008).

         There are three subparts to Rule 45(d)(3). Subpart (d)(3)(A) identifies four circumstances where courts must quash or modify a subpoena. Subpart (d)(3)(B) specifies two situations where courts have the discretion to quash or modify a subpoena “[t]o protect a person subject to or affected by a subpoena[.]” Subpart (d)(3)(C) affords courts with the discretion to instead specify conditions under which an appearance or ...


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