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Jennifer Langen v. Wells Fargo Bank

September 26, 2012

JENNIFER LANGEN, PLAINTIFF,
v.
WELLS FARGO BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED Wednesday, 26 September, 2012 02:46:36 PM Clerk, U.S. District Court, ILCD

OPINION

This matter comes before the Court on Plaintiff Jennifer Langen's Motion to Quash Non-Party Subpoena (d/e 26) (Motion). For the reasons set forth below, the Motion is denied.

BACKGROUND

Langen brings a one-count complaint against her former employer Defendant Wells Fargo Bank, N.A., (Wells Fargo) for retaliation against her for exercising her rights under the Family Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. Langen alleges that she worked for Wells Fargo from October 1, 1997, to March 27, 2011. From 2001 until her termination, she worked as a Wholesale Executive--Internal Sales. Complaint (d/e 1), ¶¶ 5-8. Langen developed serious medical conditions including an epilepsy/seizure disorder. Complaint ¶ 20. Langen alleges that Wells Fargo retaliated against her for taking FMLA leave due her medical conditions, in violation of 29 U.S.C. § 2615. This retaliation culminated in terminating her employment. Complaint ¶¶ 32-40. Langen seeks back pay and front pay as part of her damages. Complaint, Prayer for Relief ¶¶ (a) and (f).

Wells Fargo propounded interrogatories and requests to produce on Langen that included inquiries regarding her employment after her March 2011 termination at Wells Fargo. Defendant's Response to Plaintiff's Motion to Quash Non-Party Subpoena (d/e 30) (Response), at 3-5. The discovery requests included a request that Langen execute written authorizations for her subsequent employers to release employment information to Wells Fargo. Wells Fargo sought this information because of the damage claims for back pay and front pay. Her subsequent employment would be relevant to the issue of mitigation of damages.

See e.g., Franzen v. Ellis Corp., 543 F.3d 420, 430 (7th Cir. 2008).

Langen responded to these requests on February 7, 2012. She stated that she worked for Freedom Mortgage for approximately two weeks on a commission compensation structure. She then accepted a position with her current employer Clearpoint Funding. She provided her employment applications to Freedom Mortgage and Clearpoint Funding, her employment agreement with Clearpoint Funding, and tax returns from 2005-2010. Langen further stated that she took three sick days at Clearpoint Funding. Langen Memorandum, Exhibit B, Plaintiff's Answer to Defendant Wells Fargo Bank, N.A.'s First Set of Interrogatories to Plaintiff, and Exhibit C, Plaintiff's Response to Defendant's Request for Production of Documents. She refused to sign the authorizations to release employment information. She subsequently provided her 2011 tax return.

On August 8, 2012, Defendant issued a subpoena to Clearpoint Funding (Subpoena). Memorandum of Law in Support of Plaintiff's Motion to Quash Non-Party Subpoena (d/e 27) (Langen Memorandum), Exhibit F, Subpoena. The Subpoena directed Clearpoint Funding to produce:

All employment records that reflect or relate to Jennifer Langen's employment; hiring; job description; job duties; performance evaluations; disciplinary actions; wages, salary, bonus or benefits; attendance and hours and dates worked, and days missed; and dates of employment with ClearPoint Funding, Inc.

Subpoena.

On August 16, 2012, Langen was deposed. She testified that she now worked from home due to her medical issues. She testified that she had surgery in March 2012. She was off work for three days due to the surgery and then worked from home from her bed. She testified that she also had been off work due to seizures. Response, Exhibit I, Langen Deposition Transcript Excerpt, at 263-66. Langen states that she also testified about her current job duties, compensation structure, wages, and salary. Langen Memorandum, at 2.*fn1 She had not produced any documents about her compensation in 2012 as of the time of the deposition.

On August 27, 2012, Langen supplemented her discovery production with a two-page document entitled, "Your Pay Statements History." Langen Memorandum, Exhibit D, Plaintiff's Second Supplemental Response to Defendant's Request for Production of Documents. The document contains a list of pay dates from June 24, 2011, to August 16, 2012, with gross and net amounts for each date. The face of the document does not identify either the employer or ...


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