McConkey v. The Churchill School and Center

Background

The Churchill School and Center moved under Federal Rule of Civil Procedure 37(a)(1) to compel Dennis McConkey to produce documents. The requested discovery concerned treatment related to McConkey’s claims for emotional distress, mental anguish, pain and suffering, and other non-economic injuries, as well as his post-termination earnings and tax returns.

Treatment-provider authorization

The school sought a health-privacy-law-compliant authorization that would allow it to obtain relevant records from a treatment provider. McConkey did not dispute that he intended to use information about his treatment to support his damages claim and acknowledged that the school could question him about the treatment at his deposition. He objected that the provider did not maintain treatment records, so the requested documents did not exist.

The court granted this part of the motion. It reasoned that, by claiming more than ordinary emotional distress and relying on testimony about the provider, McConkey had placed the treatment he received at issue. The school was entitled to test McConkey’s assertion that no records existed by serving a subpoena on the provider.

Post-termination earnings

The school also sought documents showing McConkey’s post-termination earnings from any source, including self-employment, freelance work, art sales, and other income. McConkey responded that the only undisclosed income was from painting sales made while he worked for the school and afterward. He argued that income from this “moonlighting” would not reduce a possible backpay award because he would have earned it even if he had continued working for the school.

The court explained that Title VII backpay is intended to make an employee whole, not provide more or less than whole relief. Title VII requires backpay to be reduced by interim earnings or amounts the employee could have earned with reasonable diligence. The court also recognized an exception for earnings from a second job that the employee held or would have held in addition to the lost employment.

The court granted the school’s request for the earnings documents. It held that the school was entitled to test whether McConkey’s painting income was consistent before and after his termination and therefore could properly fall within the exception for separate employment rather than being treated as deductible interim income. McConkey’s general statement that reviewing his records would be burdensome was insufficient to defeat the request. The court directed him to produce all requested post-termination earnings, without excluding his art-sale income.

Tax returns

The school requested McConkey’s complete tax returns, including schedules, W-2 forms, and 1099 forms, from 2018 through the present. The court stated that tax returns receive special protection in civil discovery because of the sensitivity of the information and the public interest in complete and accurate tax filings.

The court found that the school had shown the returns contained relevant information but had not shown that the information could not be obtained from less intrusive sources. It therefore denied the request to compel production of the tax returns.

Disposition

The court held that the motion at Dkt. No. 35 was granted in part and denied in part. The separate motion to seal at Dkt. No. 36 was granted. The Clerk of Court was directed to close both motions.