# Casanola v. Delta Machine & Ironworks LLC

> District Court, M.D. Louisiana · January 5, 2021

URL: https://www.frixlaw.com/law-library/cases/10191675

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** January 5, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

SERGIO CASANOLA CIVIL ACTION

VERSUS NO. 19-300-JWD-SDJ

DELTA MACHINE &
IRONWORKS, LLC, et al.

ORDER

Before the Court is a Motion to Compel (R. Doc. 51) Plaintiff’s complete responses to
written discovery propounded by Defendant, Delta Machine & Ironworks, LLC. Plaintiff, who is
proceeding pro se, filed an Opposition to the Motion on October 27, 2020. (R. Doc. 54).
In this lawsuit, Plaintiff alleges that Delta violated Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a)(1), by terminating his employment because of his race and national origin.
Just a week shy of the discovery deadline, Defendant filed this Motion to Compel (R. Doc. 51).
Rule 26(b)(1) generally allows a party to “obtain discovery regarding any non-privileged
matter that is relevant to any party's claim or defense and proportional to the needs of the case . . .
.” Fed. R. Civ. P. 26(b)(1) (proportionality takes into account “the importance of the issues . . . the
amount in controversy, the parties' relative access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and whether the burden or expense . . .
outweighs its likely benefit.”). The court must limit the frequency or extent of discovery that is
“unreasonably cumulative or duplicative,” the requesting party “has had ample opportunity to
obtain,” or is “outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).
Having reviewed the parties’ submissions (R. Docs. 51, 54), as well as the applicable law,
the Court resolves Defendant’s Motion to Compel (R. Doc. 51) below.
A. Documents Identified in Plaintiff’s Initial Disclosures
Defendant’s Request for Production Nos. 8 and 9 asked Plaintiff to produce documents in
his possession that he allegedly took from Delta prior to his termination. (R. Doc. 51-1 at 3-4).

Plaintiff has referenced these documents in filings throughout the record (R. Doc. 37 at 2)
(Plaintiff’s Initial Disclosure); (R. Doc. 42 at 15) (Plaintiff’s Motion to Amend) but has refused to
produce them in response to Defendant’s discovery requests. In his Opposition, Plaintiff claims
that he has complied with his obligations under Rule 26(a)(1)(ii), which only required him to
provide a description of the documents. Plaintiff is incorrect.
There is a difference between formal discovery requests and initial disclosures. While a
“description” of relevant documents “by category and location” will suffice for purposes of initial
disclosures, Plaintiff was required to actually produce those documents in response to Defendant’s
Request for Production Nos. 8 and 9. And as a final note, it is irrelevant under the circumstances

that Defendant may also be in possession of copies of these documents. Defendant is entitled to
know the exact universe of documents referenced by Plaintiff in his Initial Disclosures (R. Doc.
37 at 2) and other filings (R. Doc. 42 at 15). Therefore, Defendant’s Motion to Compel is
GRANTED as to Request for Production Nos. 8 and 9. Plaintiff must produce the requested
documents within 21 days of this Order.
B. Plaintiff’s Tax Returns
Defendant’s Request for Production No. 5 asked Plaintiff to “produce copies of all
documents reflecting or referencing income earned by you from January 1, 2010 to the present,
including all of your federal and state income tax returns, W-2 forms, W-9 forms, and 1099 forms.”
(R. Doc. 51-3 at 6). Plaintiff has refused to produce any of the requested information.
Tax returns are highly sensitive documents and the court will only compel their production
where the requesting party “demonstrates both: (1) that the tax information is relevant to the
subject matter of the action; and (2) that there is a compelling need for the information because

the information contained in the tax returns is not otherwise readily obtainable through alternative
forms of discovery, such as depositions or sworn interrogatory answers.” Bulter v. Exxon Mobile
Ref. & Supply Co., 2008 WL 4059867, at *2 (M.D. La. Aug. 28, 2008).
Because Plaintiff is seeking compensatory damages for lost wages, his tax returns are
relevant to the litigation. Butler, 2008 WL 4059867, at *2 (Numerous courts have recognized “that
tax return information is relevant where a plaintiff has placed the subject of his income/earning
capacity at issue in litigation.”). For the same reason, any other documents evidencing Plaintiff's
earnings, which are not subject to the same qualified privilege, are likewise relevant and must be
produced. However, as the Court later explains with respect to Interrogatory No. 3, Plaintiff's

earnings prior to his employment with Defendant are not relevant to this cause of action. Therefore,
the temporal scope of the financial information relevant to Plaintiff's case is limited to the time
period during and after his employment with Defendant. Because Plaintiff was hired by Defendant
October 12, 2015, only Plaintiff's earnings (and other financial information) between October 12,
2015, and the present are relevant and discoverable.
Second, Defendant has shown a compelling need for Plaintiff's tax returns because he has
not produced any other documents relating to the wages he has earned since his termination. While
the Court recognizes that this information may also be obtained in response to interrogatories or
deposition questions, that fact does not negate Defendant's showing. Plaintiff was asked during
discovery to produce “all documents reflecting” his income. (R. Doc. 51-3 at 6). Defendant claims,
and Plaintiff does not dispute, that he has not produced any responsive documents. Plaintiff has
likewise not claimed that these documents do not exist. For that reason, Defendant has shown a
compelling need for Plaintiff's tax returns.
Therefore, Defendant's Motion to Compel is GRANTED in part as to Request for

Production No. 5. The Court temporally limits Request for Production No. 5 to the period
between October 12, 2015, and the present. Subject to the temporal limitations set by the Court,
Plaintiff must respond to Request for Production No. 5 within 21 days of this Order.
C. Plaintiff’s Employment History
Defendant’s Interrogatory No. 3 sought information regarding Plaintiff’s employment
history, beginning in 1995.
Interrogatory No. 3:
Please state the name, address, and telephone number of every full time and/or part
time employer (including self-employment) that you have worked for during the
preceding twenty (20) years of the date of the incident alleged in the Complaint,
and through the present date, as well as the start date of any such employment, the
termination date of any such employment, a description of the work performed, the
average number of hours worked per week, and the average weekly wage or
earnings paid by the employer.”

(R. Doc. 51-1 at 5). Defendant also seeks production of any supporting documentation in its
Request for Production No. 1. Plaintiff objected to these requests, describing the information
sought as “privilege and personal” and arguing “the documents requested do not assist Defendant.”
(R. Doc. 51-1 at 5). To the extent Defendant seeks information regarding Plaintiff’s previous
employment, the Court agrees.
Damages. Defendant claims that information regarding Plaintiff’s employment history will
be relevant to his alleged damages. But documents showing Plaintiff’s earnings with a past
employer—i.e., wages earned before his employment with Defendant—are not relevant.
An award of back pay under Title VII is meant to “restor[e]” the injured worker “to the
economic position in which they would have been but for the discrimination.” Pettway v. American
Cast Iron Pipe Co., 494 F.2d 211, 252 (5th Cir. 1974); Jackson v. Host Intern., Inc., 426 F. App’x
215, 222 (5th Cir. 2011) (“Back pay commonly refers to the wages and other benefits that an
employee would have earned if the unlawful event that affected the employee's job related

compensation had not occurred.”). The focus is necessarily on the employee's compensation during
his or her employment with the defendant employer. Compensation and other employment records
relating to a previous employer would therefore be irrelevant to determine the amount of “back
pay otherwise allowable.” 42 U.S.C. § 2000e-5(g)(1); see also Maxwell v. Health Center of Lake
City, Inc., 2006 WL 1627020, at *3 (M.D. Fla. June 6, 2006) (While a former employee's salary
after employment “is relevant to the issue of mitigation of damages, Defendant has failed to show
why her previous earnings have any relevance to damages.”); Graham v. Casey's General Stores,
206 F.R.D. 251, 255 (S.D. Ind. 2002) (defendant failed to show why “salary information from a
previous employer is in any way relevant to damages” in an employment discrimination case).

Back pay may be reduced, however, by “[i]nterim earnings or amounts earnable with
reasonable diligence by” the employee. 42 U.S.C. § 2000e-5(g)(1). First, Plaintiff's rate of pay at
his current job, or any job held after his employment with Delta ended on March 9, 2016, is
obviously relevant and discoverable evidence of “interim earnings,” which may warrant a
reduction of back pay. Second, an employer may defend against and reduce an award of back pay
by showing the employee failed to mitigate his or her damages. The burden is on the employer to
prove the (1) availability of substantially equivalent work; and (2) former employee's failure to
exercise reasonable diligence to obtain it. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393
(5th Cir. 2003).
“Substantially equivalent employment ... affords virtually identical promotional
opportunities, compensation, job responsibilities, working conditions, and status as the position
from which the [former employee] has been discriminatorily terminated.” Sellers v. Delgado
College, 902 F.2d 1189, 1193 (5th Cir. 1990). “The point of comparison must be the employment
position with respect to which discrimination occurred.” Buckingham v. Booz Allen Hamiltom,

Inc., 64 F. Supp. 3d 981, 985 (S.D. Tex. 2014).
With these principles in mind, whether Plaintiff's current position, or any position held
after March 9, 2016, is substantially equivalent to his job with Defendant is relevant to mitigation
and obviously discoverable. “Plaintiff's past employment, however, is not relevant nor is it
proportional to the needs of this case.” Williams v. United States Environmental Services, LLC,
2016 WL 684607, at *6 (M.D. La. Feb. 18, 2016); see also Boehms v. Crowell, 139 F.3d 452, 460
(5th Cir. 1998) (“[O]ur focus in a mitigation analysis—and the base from which all comparisons
about whether ‘reasonable efforts’ to obtain comparable work are made—must be the employment
position with respect to which discrimination occurred.”). Therefore, to the extent Interrogatory

No. 3 and Request for Production No. 1 seek evidence related Plaintiff’s employment between
March 9, 2016, and the present, the Court will permit discovery of that information.
Performance. Defendant also contends that evidence of Plaintiff’s employment history is
relevant because it “may reflect a pattern of unsatisfactory performance in similar positions.” The
Court disagrees.
In a disparate treatment claim, “the ultimate issue is the employer's reasoning at the
moment the questioned employment decision is made.” Patrick v. Ridge, 394 F.3d 311, 319 (5th
Cir. 2004) (“a justification that could not have motivated the employer's decision is not evidence
that tends to illuminate the ultimate issue and is therefore simply irrelevant”); see also Price
Waterhouse v. Hopkins, 490 U.S. 228, 252 (1989) (courts should conduct a snapshot inquiry into
the employer's motive at the exact instant the decision was made). Therefore, the “evidence
relevant to determining whether” an employer terminated an employee for legitimate
nondiscriminatory reasons “is evidence that goes to what [the employer] knew at the time [it] ...
recommended [the employee's] termination.” Perez v. Tx. Dep't of Criminal Justice, Inst. Div., 395

F.3d 206, 210 (5th Cir. 2004).
According to Defendant, Plaintiff was terminated for poor performance. However,
Defendant now seeks additional records seemingly to bolster the reasons given for its previous
employment action. This position is misguided. “To establish its given reason for terminating
Plaintiff, Defendant must present evidence of the actual sub-standard performance observed by
Defendant, not some other employer. Any new records from other employers could not have
motivated Defendant's decision at the time it was made and are therefore irrelevant.” Williams,
2016 WL 684607, at *6; see also EEOC v. Texas Roadhouse, Inc., 303 F.R.D. 1, 3 (D. Mass. 2014)
(employment records from other employers were not relevant to show charging party's

“‘performance at other employers was deficient,’ ” as “the factual issue at trial will be what Texas
Roadhouse knew ... at the time of the alleged discrimination”); Sanders v. Dalcraft, LLC, 2009
WL 1392602, at *2 (N.D. Tex. May 18, 2009) (rejecting argument that employment records from
former employers were relevant and discoverable because they “may show performance
deficiencies similar to those relied upon by [the defendant] to justify the termination”); Allen v.
CVS Pharmacy, Inc., 2013 WL 3873239, at *12 (S.D. Tex. July 25, 2013) (recognizing that “the
Supreme Court has cautioned that employers should not, as a routine matter, undertake extensive
discovery into an employee's background or performance to resist claims of discrimination”).
Therefore, evidence of Plaintiff’s job performance or reasons for leaving other jobs are irrelevant.
For the reasons given above, Defendant’s Motion to Compel is GRANTED in part and
DENIED in part as to Interrogatory No. 3 and Request for Production No. 1, as outlined by
the Court above. The Court expressly limits Interrogatory No. 3, and any related documents sought
through Request for Production No. 1, to the following information:
Every job (whether full or part-time) that Plaintiff has held between March 9,
2016, and the present. For each job, Plaintiff must provide:

(a) employer’s name, address and phone number;
(b) dates of employment;
(c) compensation; and
(d) description of the work performed.

D. Benefits Received after March 9, 2016
Defendant’s Interrogatory No. 11 asks whether Plaintiff has “applied for or received any
unemployment benefits, disability benefits, retirement benefits, pension benefits or worker’s
compensation [benefits]” since his termination on March 9, 2016. (R. Doc. 51-1 at 7). And Request
for Production No. 1 seeks production of any documents referenced in Plaintiff’s response.
Similarly, Request for Production No. 7 asks Plaintiff to sign an authorization for the release of
his records from the Social Security Administration. (R. Doc. 51-1 at 8). According to Defendant,
the requested information is relevant to Plaintiff’s alleged back pay and monetary damages and is
therefore discoverable.
A successful employment discrimination plaintiff is generally entitled to back pay. See 42
U.S.C. § 2000e-5(g)(1). In determining the award, the court must bear in mind the “central
statutory purpose[]” of back pay—“eradicating discrimination throughout the economy and
making persons whole . . . .” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 421 (1975) (The
purpose of Title VII “was to achieve equality of employment opportunities and remove barriers
that have operated in the past to favor an identifiable group of white employees over other
employees. Backpay has an obvious connection with this purpose.”); Salge v. Edna Indep. Sch.
Dist., 320 F. Supp. 2d 542, 544 (S.D. Tex. 2004) (“to discourage [] discrimination and to
compensate” its victims); EEOC v. United Bible Fellowship Ministries, Inc., 2015 WL 13649825,
at *3 (S.D. Tex. May 19, 2015) (“While back-pay is not automatic or mandatory, it is an integral
part of the primary objective of Title VII to deter unlawful employment practices.”).

And while “[m]ost courts have refused to deduct such benefits as social security and
unemployment compensation from [back pay] awards,” Guthrie v. J.C. Penney Co., 803 F.2d 202,
209 (5th Cir. 1986) (refusing deduction), that decision is ultimately “within the discretion of the
district court,” Matherne v. Wilson, 851 F.2d 752, 762 (5th Cir. 1988). See also U.S. Equal
Employment Opportunity Comm'n v. United Bible Fellowship Ministries, Inc., 2015 WL
13649825, at *4 (S.D. Tex. May 19, 2015) (declining a deduction, but noting: “[I]n the Fifth
Circuit, the District Court has discretion to deduct collateral sources of payments such as
unemployment benefits from a back pay award.”); Johnson v. Chapel Hill Indep. Sch. Dist., 853
F.2d 375, 382 (5th Cir. 1988) (Finding the district court did not err “by refusing to deduct

unemployment compensation benefits from the back pay award to Johnson and from the back pay
and front pay award to Walton.”); EEOC v. Martin Marietta Corp., 1987 WL 9270, at *3 (E.D.
La. Apr. 2, 1987) (The court was “impressed by the principles developed by the jurisprudence that
the state unemployment compensation fund was designed to serve a wholly independent social
policy; that this fund is not to be a factor in back pay awards under Title VII and that the collateral
source rule is applicable to any unemployment compensation benefits derived from that system
received by Ms. Morris.”); Dufresne v. J.D. Fields And Co., 2001 WL 1287122, at *2 (E.D. La.
Oct. 22, 2001) (“Further, even if Plaintiff had received unemployment compensation benefits, the
court finds that they are a collateral source that should not be deducted from back pay.”); but see
Guthrie, 803 F.2d 210 (pension or retirement benefits paid out of the defendant-employer’s
retirement fund can be used to off-set back pay award); Salge v. Edna Indep. Sch. Dist., 320 F.
Supp. 2d 542, 544 (S.D. Tex. 2004) (“Whether retirement benefits should be offset from an award
of lost wages depends on whether the benefits were provided or funded by the employer or the
employee.”).

Because the trial court has the discretion to deduct any unemployment or similar benefits
received by Plaintiff from an award of back pay, whether Plaintiff’ received any “unemployment
benefits, disability benefits, retirement benefits, pension benefits or worker’s compensation”
between March 9, 2016, and the present falls within the scope of discovery. However, whether
Plaintiff “applied for” any of these benefits is not relevant. The Court also finds Defendant’s
request that Plaintiff execute an authorization for the release of his social security records to be
overbroad. Although Defendant has failed to provide the Court with a copy of the release,
depending on its scope, the release could potentially disclose sensitive medical information not
relevant to this litigation.

For these reasons, Defendant’s Motion to Compel is DENIED as to Request for
Production No. 7. However, the Motion is GRANTED in part and DENIED in part as to
Interrogatory No. 11 and Request for Production No. 1, as outlined by the Court above. The Court
expressly limits Interrogatory No. 11, and any related documents sought through Request for
Production No. 1, as follows:
Plaintiff must disclose any “unemployment benefits, disability benefits, retirement
benefits, pension benefits or worker’s compensation [benefits]” received between
March 9, 2016 and the present. Plaintiff’s disclosure should include the amount
and date of each payment. Plaintiff should likewise produce documents
substantiating each payment.
E. Agreement to Supplement
According to Defendant, Plaintiff agreed to supplement his responses to Request for
Production Nos. 2, 4, and 6 by August 7, 2020, but has not provided any documents to date. (R.
Doc. 51-1 at 8-9). In his Opposition, Plaintiff refutes this account. Because there seems to be a
misunderstanding between the parties, the Court considers each request below.

Request for Production No. 2 asks for any written or electronic communications between
Plaintiff and Delta or Delta employees. The Court finds this request to be reasonable and within
the scope of discovery, as communications between Plaintiff and Delta would shed light on the
employment relationship at issue in this litigation. Therefore, Defendant’s Motion to Compel is
GRANTED as to Request for Production No. 2, and Plaintiff must produce all responsive
documents in his possession, custody or control within 21 days of this Order.
Request for Production No. 4 asks for any “diary entries, journal entries, or other personal
notes maintained by [Plaintiff] relating to the allegations made in the Complaint.” (R. Doc. 51-3
at 6). The Court finds this request to be generally problematic, given that Plaintiff is pro se and

responsive documents may include his litigation strategies. However, Defendant indicates that
Plaintiff maintained a list of all jobs he worked on while at Delta (R. Doc. 51-1 at 9), and these
specific notes are relevant and non-intrusive. The Court will therefore partially GRANT
Defendant’s Motion to Compel as to Request for Production No. 4 by requiring Plaintiff to
produce any list he maintains of the jobs he worked on while employed by Delta. Plaintiff must
produce the list within 21 days of this Order. Otherwise, Defendant’s Motion is denied as to
Request for Production No. 4.
Request for Production No. 6 seeks any exhibits Plaintiff might use at trial. Plaintiff
properly objected to this request. “If this case goes to trial, the Court will order the parties to
provide an exhibit list through an appropriate pre-trial order.” Mack v. Benjamin, 2014 WL
7359054, at *2 (M.D. La. Dec. 23, 2014) (denying motion to compel response to an identical
request). Until that time, this request is premature. See Nguyen v. Louisiana State Board of
Cosmetology, 2016 WL 3646854, at *1 (M.D. La. April 13, 2016) (“Court will not issue an order
compelling the identification of may-call witnesses at a time that conflicts with its own Scheduling

Order.”). Therefore, Defendant’s Motion to Compel is DENIED as to Request for Production
No. 6.
Nonetheless, the Court notes that, similar to the information sought in Request for
Production No. 6, the parties were required to provide “a copy--or a description by category and
location--of all documents, electronically stored information, and tangible things that the
disclosing party has in its possession, custody, or control and may use to support its claims or
defenses,” as part of their Initial Disclosures. Fed. R. Civ. P. 26(a)(1)(ii). Rule 26(e)(1) further
obligates all parties to continuously “supplement or correct” their initial disclosures “in a timely
manner if [they] learn[] that in some material respect the disclosure . . . is incomplete or incorrect

. . . .”
The parties are likewise reminded that under Rule 37(c)(1), a party who fails to give
information “or identify a witness as required by Rule 26(a) or (e) . . . is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure
was substantially justified or is harmless.” See Caskey v. Man Roland, Inc., 83 F.3d 418, at *5 (5th
Cir. 1996) (“district court violated its discretion in failing to invoke the mandatory exclusion
sanction of Rule 37(c)(1)” by not excluding defendant's surveillance tape requested by plaintiff
during discovery, but presented by defendant for the first time at trial); Red Dot Bldgs. v. Jacob
Technology, Inc., 2012 WL 2061904, at *3 (E.D. La. June 7, 2012) (Rule 37(c)(1)'s exclusion “is
mandatory and automatic unless the party demonstrates substantial justification or
harmlessness.”); Moore v. BASF Corp., 2012 WL 4344583, at *4 (E.D. La. Sept. 21, 2012) (a party
is not excused from its Rule 26 obligations “because it has not fully investigated the case”).
With that in mind, if any documents are later identified on Plaintiff's exhibit list that were
not otherwise made known to Defendant during discovery, despite Plaintiff’s obligation to do so,

Defendant may move the district judge for an order striking those exhibits.
Signed in Baton Rouge, Louisiana, on January 5, 2021.

S

SCOTT D. JOHNSON
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191675. Public record. Not legal advice.