When an employee sues his former employer for discrimination, the employee is obviously concerned that his reputation is not further damaged by the litigation. The employer being sued, however, may want information from both former and current employers of that employee and will seek such information in litigation. The Massachusetts Federal Court addressed this issue in a discovery order on December 8, 2008 in the case of Richard Turnley, III, et al v. Banc of America Investment Services, Inc. and Bank of America N.A.
Turnley and five other plaintiffs on behalf of themselves and trying to establish a class action suit sued Bank of America for employment discrimination. Bank of America as part of that litigation served ten third-party subpoenas on plaintiffs’ former employers, current employers, and three other business entities seeking a variety of documents regarding their work performance at those companies. The plaintiffs argued to the court that the discovery sought should be prohibited because it was not reasonably calculated to lead to discovery of admissible evidence and was calculated to invade the plaintiffs’ privacy and will subject the plaintiffs to unwarranted intrusion, annoyance, harassment, and embarrassment.
The court first noted that if Bank of America learned information as a result of the subpoenas, that knowledge would be obtained after it took an adverse employment action against the plaintiffs and therefore it could not use the information to bolster its reasoning for that adverse employment action in defending against liability. However, evidence of compensation earned by the plaintiffs after they left the defendant’s employ bears on their damages, and in particular, on the question of whether or not the plaintiffs mitigated their damages. The plaintiffs worked on commission. If they prevailed, they would have to show what they would have earned if they had not been discriminated against; evidence of compensation which is relevant not only as to their track record since leaving Bank of America’s employ, but also their track record prior to their employment with Bank of America. The court did note that if this case involved salaried employees, evidence of prior salary rates would not necessarily be discoverable. Furthermore, the plaintiffs put their prior track record at issue. They had alleged substantial successful experience in the financial services industry and offered specific evidence of such experience in their Complaint. Information sought in the subpoenas could be admissible to challenge, if necessary, their alleged prior successful careers in financial services.
The court found that the mere fact of bringing a lawsuit and the breadth of the Complaint make groundless the plaintiffs’ infringement of privacy claims, noting there is already an existing Protective Order prohibiting the information obtained by Bank of America to be publicly used.
The court ultimately prohibited discovery relating to any depositions of representatives of the subpoenaed entities and documents with respect to positions held by the plaintiffs with former employers, which job positions were not comparable to the job positions at issue. The court, however, allowed the discovery to happen with regards to all other documents. The permitted discovery included documents involving the plaintiffs’ independent contractor relationship with employers, their compensation, and performance in working in the financial services field in comparable positions.
For employees who believe they have been discriminated against and who are considering taking action, this order clarifies when you put prior compensation and your work history at issue, your former employer will be able to find out the detailed information of how well you actually did in your prior and current jobs just as when you assert physical or mental damages, you place your medical and psychiatric records at issue. This, of course, does not permit the employer to use that information for anything other than litigation. The court will readily grant a protective order limiting the use of that information to the litigation.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].