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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

TOM SHAY, 

 

Plaintiff, 

No. 12 C 1687

v. 

Magistrate Judge Mary M. Rowland

LIFTING GEAR HIRE, CORP., 

Defendant. 

MEMORANDUM OPINION AND ORDER 

Plaintiff Tom Shay brings this action against his former employer, Defendant 

Lifting Gear Hire, Corp. (“Lifting Gear”), alleging Lifting Gear discriminated 

against him on the basis of age in violation of the Age Discrimination in 

Employment Act (“ADEA”) and retaliated against him for his complaints about age 

discrimination. Lifting Gear now brings a motion to compel, arguing that Shay has 

failed to respond to discovery requests concerning his employment since his 

termination from Lifting Gear. For the reasons stated below, the Court grants in 

part and denies in part the motion to compel. 

I. BACKGROUND 

Tom Shay worked as a Regional Sales Manager for Lifting Gear from April 2005 

until December 2010. In his complaint, Shay alleges that Lifting Gear passed him 

over for a promotion in favor of a younger, less-qualified worker; and that, after he 

complained about the promotion decision as discriminatory, the company fired him. 

Case: 1:12-cv-01687 Document #: 28 Filed: 12/21/12 Page 1 of 7 PageID #:135
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Shay currently operates his own business, Hoisting-Rigging Equipment Rentals, 

Inc. (“HRERI”). 

On June 15, 2012, Lifting Gear served Shay with interrogatories and document 

requests, some of which sought information concerning Shay’s employment since his 

December 8, 2010 termination. Shay has, in large part, refused to respond to those 

requests, asserting that they are “unduly burdensome,” “irrelevant,” “an invasion of 

privacy,” etc. The three requests at issue, Shay’s initial responses / objections, and 

Shay’s subsequent responses (as expressed in a meet & confer letter) are condensed 

below: 

Interrogatory No. 8

Identify every employer by whom Plaintiff has been employed (other than 

Defendant) from December 9, 2010 to the present.... 

Plaintiff’s Initial Response: Plaintiff objects to Interrogatory No. 8 as overbroad, 

unduly burdensome, irrelevant, not reasonably calculated to lead to the discovery of 

admissible evidence, and as violating the collateral source rule. Subject to and 

without waiving said objection, Plaintiff’s corporation, Hoisting-Rigging Equipment 

Rentals, Inc. 

Plaintiff’s Supplemental Response from 9/26/12 Letter: Plaintiff maintains that 

his answer to Interrogatory No. 8 is complete. Nonetheless, Plaintiff further states 

that he has owned Hoisting-Rigging Equipment Rentals, Inc. since approximately 

August of 2011 and has not received any income from this position. 

Document Request No. 20

For the period from December 8, 2008 through the present, all documents 

relating to Plaintiff’s efforts to obtain employment, including but not limited to 

employment applications or inquiries Plaintiff has made (including any logs, diaries 

or any other records of such inquiries kept by Plaintiff or on behalf of Plaintiff) and 

documents submitted to or received from third parties. 

Plaintiff’s Initial Response: Plaintiff objects to Request No. 20 as overly broad, 

unduly burdensome, and an invasion of privacy. Subject to and without waiving 

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said objection, Plaintiff states he provided IDES his resume to keep on file for any 

job opportunities through their employment services. 

Plaintiff’s Supplemental Response from 9/26/12 Letter: Plaintiff maintains his 

answer and objections and further clarifies that all documents have been produced 

responsive to these requests. 

Document Request No. 39

All documents related to the start-up or forming of Plaintiff’s corporation, 

Hoisting-Rigging Equipment Rentals, Inc., created on or before December 8, 2010. 

Plaintiff’s Initial Response: See documents filed with the Illinois Secretary of 

State. 

Plaintiff’s Supplemental Response from 9/26/12 Letter: Regarding Defendant’s 

request for all documents related to the start-up or forming of Plaintiff’s 

corporation, Hosting-Rigging Equipment Rentals, Inc., Plaintiff simply referred 

Defendant to the Secretary of State website for the public information regarding 

Hoisting-Rigging Equipment Rentals, Inc. Moreover, Plaintiff further objects to this 

request as an invasion of privacy, irrelevant, and not germane to the instant claims 

and further refers Defendant to Interrogatory No. 8 .... 

On November 1, 2012, Lifting Gear filed a motion to compel, arguing that Shay 

should be ordered to turn over information concerning his post-termination 

employment and the founding of HRERI. Lifting Gear argues that those materials 

are discoverable, because they relate to (1) Shay’s efforts to mitigate his alleged 

damages; (2) calculation of Plaintiff’s alleged damages; and (3) Lifting Gear’s afteracquired evidence defense. 

On November 8, 2012, following brief argument of the parties, the Court 

overruled Shay’s objections to Interrogatory No. 8 and Document Request No. 20. 

As stated in Court, information concerning Shay’s post-termination earnings bears 

on the issue of mitigation and, therefore, must be produced. Pursuant to that ruling, 

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Shay is obligated to produce all of his personal W-2 and tax return statements, 

(Dkt. 25 at 5, note 4), and any other responsive documents. 

The Court reserved ruling on the issue of whether Lifting Gear is also entitled to 

discovery concerning the establishment of Shay’s business. The parties have filed 

opposing briefs, and the Court is now prepared to rule on the issue. 

II. DISCUSSION 

Lifting Gear has moved the Court to compel production of any documents 

relating to Shay’s start-up, irrespective of their date,1 as relevant to Lifting Gear’s 

(1) after acquired evidence defense; or (2) failure to mitigate defense. (Dkt. 16 at 5). 

A. After acquired evidence defense 

After terminating a plaintiff employee, an employer may learn that the plaintiff 

violated work rules that would have resulted in the plaintiff’s termination if known 

to the employer before the lawsuit. This is called “after-acquired evidence.” 

McKennon v. Nashville Banner Publishing Co., 513 U.S. 352 (1995). Such evidence 

“does not bar all relief, although it can limit recoverable damages.” Rooney v. Koch 

Air, LLC, 410 F.3d 376, 382 (7th Cir. 2005). In particular, the plaintiff may not be 

entitled to reinstatement or front pay if the defendant can show that “the 

wrongdoing was of such severity that the employee in fact would have been 

terminated on those grounds alone if the employer had known of it at the time of 

the discharge.” McKennon, 513 U.S. at 362–63. 

 

1 Defendants expanded this request to include all documents, regardless of date, by Mr. Herring’s 

letter dated September 18, 2012. (Dkt. 16-6 at 2). 

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Lifting Gear relies on a passage of its employee handbook providing that, if Shay 

started his business while employed at Lifting Gear and used Lifting Gear’s time or 

resources to do so, he could have been fired: 

The following may result in disciplinary action, up to and including 

discharge: violation of the corporation’s policies or safety rules; 

insubordination; . . . performing outside work or use of corporation 

property, equipment or facilities in connection with outside work while 

on corporation time; poor attendance or poor performance. 

(Dkt. 26 at 4-5 (emphasis added)). In response, Shay argues that he did not start his 

business until the summer of 2011 and, therefore, there are no documents 

concerning the start-up of his company predating December 8, 2010. 

 Lifting Gear’s basis to explore whether Shay founded HRERI while still 

employed arises from a misreading of a record from Shay’s purchase of HRERI’s 

internet domain name. The document indicates that the domain name was 

purchased on “07-Jul-11,” which Lifting Gear reads as July 11, 2007. (Dkt. 16 at 9 

and Ex. 9). It is clear from the context of the document, however, that “07-Jul-11” 

should instead be read as July 07, 2011 (seven months after Shay’s termination).2

Moreover, Shay has provided a business record establishing that he purchased the 

domain name on “7/7/2011.” (Dkt. 25-1). 

There is simply no basis on which to explore whether Shay began HRERI prior 

to his termination, and his after-termination conduct is irrelevant to Defendant’s 

after-acquired evidence defense. See Liles v. Stuart Weitzmann, LLC, No. 09-61448-

 

2 The expiration date for the domain name is listed as “07-Jul-21.” If, as Lifting Gear 

suggests, the final two digits represented the day, rather than the year, the domain name 

would expire in only 10 days. That defies common sense – there would be little reason to 

register a website domain name for such a brief time period.

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CIV, 2010 WL 1839229, at *2 (S.D. Fla. May 6, 2010) (defendant’s after-acquired 

evidence defense did not entitle it to materials about plaintiff’s activities outside the 

term of his employment with defendant); Woods v. Fresenius Med. Care Grp. of N. 

Am., No. 1:06-cv-1804, 2008 WL 151836 (S.D. Ind. Jan. 16, 2008) (same); 

Chamberlain v. Farmington Sav. Bank, No. 3:06CV01437, 2007 WL 2786421, at *2 

(D.Conn. Sept. 25, 2007) (same). 

B. Failure to mitigate defense 

Lifting Gear also argues that information concerning Shay’s start-up business is 

discoverable because it is potentially relevant to its failure to mitigate damages 

defense. In cases where a plaintiff becomes self-employed following an allegedly 

discriminatory discharge, the defendant employer can still establish that plaintiff 

failed to mitigate damages, but only in limited circumstance. The defendant must 

show that plaintiff’s decision to become self-employed was not a “reasonable 

method” of obtaining an income, or that plaintiff did not make a “good faith exercise 

of diligence” in getting his business off the ground. Smith v. Great Am. Rests., Inc., 

969 F.2d 430, 433-34 (7th Cir. 1992); see also EEOC v. EMC Corp. of Mass., 205 

F.3d 1339 (Table), at *13 (6th Cir. 2000) (“a [self-employed] employee is not 

required to go to heroic lengths in attempting to mitigate her damages, but only to 

take reasonable steps to do so”) (internal citation omitted). 

Thus, information concerning the start-up of Shay’s business may be relevant to 

Lifting Gear’s failure to mitigate damages defense. Shay must produce any 

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documents within his possession or control concerning his decision to start his own 

business so that Lifting Gear may assess the reasonableness of that decision. 

III. CONCLUSION 

Neither party has described what documents regarding HRERI exist. For the 

reasons described above, the Court DENIES the Motion with respect to documents 

related to Shay’s start-up business that are unrelated to mitigation, and GRANTS 

Lifting Gear’s Motion to Compel with respect to documents related to the 

reasonableness of Shay’s decision to start his own business as a means to mitigate 

his damages. Any such documents are to be produced for Attorney’s Eyes Only 

within 30 days of the date of this Order. 

Dated: December 21, 2012 

E N T E R: 

 MARY M. ROWLAND 

United States Magistrate Judge 

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