One of the aspects unique to employment suits is the simple fact that a fired person will, one hopes, soon find new employment. Generally, for most folks, one job will follow another. That presents new sources of evidence. In Mesa v. City of San Antonio, No. 16-CV-870 (W.D. Tex. 1/23/2018), Abel Mesa worked for City Public Service for some 26 years. Mr. Mesa sued CPS saying he was forced out due to age and disabilities. CPS defended saying Mr. Mesa had indicated he would retire early. The Plaintiff said he was forced to retire early. Mr. Mesa did in fact find a new job relatively soon after leaving CPS.
The Defendant then thought it should find out what the Plaintiff told the new employer regarding his reasons for leaving CPS. The employer wanted to see how he described his departure. Did he say he had been fired, or did he say he had retired? We can see how the latter description might help the Defendant. Plaintiff moved to quash the request for records from the new employer. The Defendant claimed it was entitled to see information regarding Plaintiff’s performance at his new place of employment, disciplinary records, and whether he had refused any promotions that would have paid a higher wage or salary. CPS argued that such information might be relevant to whether Plaintiff has adequately mitigated his damages. But, the concern for the newly employed worker is that the new employer may not like finding out that this wonderful new employee has sued his former employer. The new employer might fire Mr. Mesa when they hear about the lawsuit.
The court pointed out that the employer was using the old standard for discovery. The new standard requires that evidence be relevant and proportional. The court tried to balance the concerns of both parties, by ordering the new request to proceed. But, the documents produced would first be produced to the Plaintiff. The Plaintiff will then provide to the Defendant any statement by Mr. Mesa about why he left CPS. The Plaintiff must also provide to the Defendant any indication that the Plaintiff told the new employer about his disability. The Plaintiff must also provide any wage history to the Defendant. Otherwise, the remainder of the request for documents was denied.
Certainly, the court addressed the true potential need for discovery. The subject matters the court allowed address actual needs. But, this solution will not protect the newly employed Plaintiff from being fired. Some employer do not like to learn the new employee has filed a lawsuit against a prior employer.