Plaintiff Required To Disclose Pre-Termination Job Applications

Johnson v. Thompson, ___F. Supp. 2d___(S.D.N.Y. July 18, 2017), NYLJ July 24, 2017 (registration required), is an important decision to be aware of. In this sexual harassment employment discrimination case, the corporate defendants sought discovery of Plaintiffs PRE-TERMINATION efforts at finding other employment. 

The court ordered disclosure because this material met the definition of relevance. This was because in a sexual harassment case, Plaintiff has to establish that the workplace was both objectively and subjectively offensive and her efforts at finding work before her termination could potentially be relevant to her state of mind. As the court explained:

To be sure, "the subjective component of the test…does not require that [the plaintiff] quit or want to quit the employment in question." Davis v. United States Postal Service, 142 F.3d 1334, 1341 (10th Cir. 1998). Thus, the information that the Corporate Defendants seek would not be conclusive; but that does not mean that it is not relevant. Indeed, it could be quite persuasive. For example, in Arnold v. Reliant Bank, 932 F. Supp. 2d 840 (M.D. Tenn. 2013), the court found it "telling" that the plaintiff, who was alleging workplace harassment, nevertheless rejected a more lucrative offer from another employer. Id. at 855. The court observed that this "suggests that, at least during the months immediately preceding her termination, the plaintiff did not perceive her work environment to be hostile." Id. Thus, the requested information is plainly relevant to the subjective prong of Ms. Johnson's hostile environment claim.For similar reasons, it is also relevant to her claim for damages for emotional distress. Efforts that the plaintiff made to extricate herself from her position at JWT and find other work would be some evidence that she was experiencing distress. Indeed, if her search were unsuccessful, the resulting anxiety could itself be compensable. See Shannon v. Fireman's Fund Insurance Co., 156 F. Supp. 2d 279, 296 (S.D.N.Y. 2001) (finding that depression resulting from unsuccessful job search following termination justified award for emotional distress). Conversely, a fact finder could infer that the plaintiff felt little emotional distress if she took no action to find alternative employment or if she rejected offers of equivalent positions.