United States District Court, W.D. New York
THOMAS E. PEREZ, Secretary of Labor, United Stated Department of Labor, Plaintiff,
REGIONAL ENVIRONMENTAL DEMOLITION, INC., et al., Defendants.
DECISION AND ORDER
KENNETH SCHROEDER, JR., United States Magistrate Judge
case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, pursuant to 28 U.S.C. § 636(b)(1), for all
pretrial matters. Dkt. #6.
commenced this action alleging that defendants unlawfully
retaliated against employee Lucian Fermo in violation of
section 11(c) of the Occupational Safety and Health Act
(“OSHA”), when they fired him in June of 2014
after he complained to his employer about unsafe working
conditions. Dkt. #1. That statute provides, in relevant part:
“No person shall discharge or in any manner
discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted
any proceeding under or related to this chapter.” 29
U.S.C. § 660(c)(1). The statute provides that the
Secretary of Labor may bring a cause of action in the
district court to restrain violations of 29 U.S.C. §
660(c)(1) and to obtain “all appropriate relief
including rehiring or reinstatement of the employee to his
former position with back pay.” 29 U.S.C. §
660(c)(2). In this action, plaintiff seeks payment to Lucian
Fermo of lost wages and compensatory damages plus
pre-judgment interest from the date of discharge; front pay;
emotional and financial distress damages and a reasonable
amount of punitive damages; expungement of Lucian Fermo's
employment records of all references to the circumstances in
this matter; injunctive relief against the defendants
preventing future violations of 29 U.S.C. § 660(c)(1);
an award of costs to the Department of Labor; and an order
that defendants prominently post, for 60 consecutive days, a
notice stating that they will not discharge or otherwise
discriminate against employees for activities protected by 29
U.S.C. § 660(c)(1). Dkt. #1.
issued a subpoena for the deposition of Lucian Fermo, which
was conducted on December 20, 2016, with Mr. Fermo
represented by a personal attorney. Dkt. #29, ¶ 9. At
his deposition, Mr. Fermo testified that he sought treatment
for emotional distress approximately six months after his
termination for a condition he had previously experienced
prior to his employment with defendants. Dkt. #29, ¶ 14.
Mr. Fermo also testified that he was injured on the job while
employed subsequent to his termination by defendants and was
receiving workers' compensation as of the date of his
deposition, potentially impacting his claim for future wages.
to the deposition, as discussed on the record at the
deposition, defendants sent a letter to Mr. Fermo's
personal attorney enclosing authorizations for release of
employment and medical records. Dkt. #29, ¶¶ 15-16
& Dkt. #32-1, p.2. Plaintiff's counsel was copied on
the letter enclosing the authorizations. Dkt. #29-3, p.2. By
letter dated February 7, 2017, plaintiff objected to the
information sought as inadmissible, irrelevant and overly
broad. Dkt. #29-5. By letter dated February 7, 2017,
defendants responded that
The request for authorizations deals directly with the issue
of damages which are being requested by the Plaintiff in this
matter, on behalf of your client. The issues of why your
client is not working, his ability to work or not, why he
cannot work, what he did when he was working, his history of
wages, etc., are all relevant to the issues of
Dkt. #29-6. Defendants noted that although Mr. Fermo
“may not technically be a named party to this action,
he is the party of interest and the main witness for
Plaintiff and benefactor from his testimony.” Dkt.
before the Court is defendants' motion to compel: (1)
employment records from Empire Dismantlement Corporation, TCI
Cable/Comcast Corporation, Time Warner Cable and First Call
Communications; (2) authorizations for prescription records
from Walgreens and Rite Aid; and (3) authorizations for
medical records from Dr. Fuleki, Dr. Panzarella and Horizon
Health Services. Dkt. #29-1. Mr. Fermo joins in
plaintiff's opposition to defendants' motion. Dkt.
aside the procedural issues regarding the timing of
defendants' demands; service of those demands upon Mr.
Fermo's personal attorney rather than the plaintiff and
by letter request rather than subpoena; and defendants'
good faith attempt to resolve the discovery dispute with
plaintiff prior to the filing of this motion, each of which
are sufficient to render defendants' request for
sanctions baseless, the Court will instead address the
appropriate scope of discovery from Mr. Fermo.
seek employment records from employers for whom Mr. Fermo
worked both before and after his employment with defendants.
Dkt. #31, pp.3-4. Plaintiff objects to defendants' demand
for personnel files from every employer for whom Mr. Fermo
has worked since 1989 in order to defend against the
Secretary's back wage demand, which is limited to the
hours and wages earned at Regional Environmental Demolition.
Dkt. #31, p.8, n.5. Plaintiff notes that it provided W-2 wage
statements for Mr. Fermo's employment after Regional
Environmental Demolition and defendants deposed Mr. Fermo on
these issues. Dkt. #31, p.8, n.5.
Court finds records from employers prior to Regional
Environmental Demolition, to wit, First Call, Time
Warner and TCI Cable, irrelevant to this litigation.
Moreover, the Court finds defendants' request for
“the full contents” of Mr. Fermo's personnel
file overbroad. With respect to Mr. Fermo's susbequent
employment, the Court relies upon plaintiff's
representation that it disclosed W-2 statements and
determines that this is sufficient to calculate loss of
income following Mr. Fermo's termination from Regional
Environmental Demolition. As a result, this aspect of
defendants' motion is denied.
and Prescription Records
argue that Mr. Fermo's medical records, including records
relating to mental health treatment, are relevant to defend
against plaintiff's emotional distress claim. Dkt. #32-4,
p.3. Plaintiff declares that it “does not intend to
call an expert at the trial and that the Secretary's Rule
26(a) disclosures make it clear that the government is only
pursuing garden variety emotional damages, which do not
require expert testimony.” Dkt. #31-1, ¶ 17. In
reliance upon plaintiff's representation, the Court
determines that disclosure of plaintiff's medical and
prescription records are not warranted. However, the Court
further determines that such representation precludes
testimony as to any medical treatment allegedly necessitated
by defendants' termination of his ...