MAYRA CABRERA V LINDA EKEMAAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
MAYRA CABRERA and NORMA PORTILLO,
March 10, 2005
LINDA EKEMA d/b/a FIVE STAR CLEANING,
Kalamazoo Circuit Court
LC No. 03-000063-CL
Official Reported Version
BLANCHE TAYLOR d/b/a FIVE STAR
Before: Hoekstra, P.J., and Griffin and Borrello, JJ.
Plaintiffs Mayra Cabrera and Norma Portillo appeal by leave granted a discovery order
that compels plaintiffs to provide their social security numbers to counsel for defendant Linda
Ekema "for the limited purpose of determining the amount of funds that have been credited to
the Plaintiffs' social security numbers as a result of work the Plaintiffs performed specifically for
the Defendants, and not for other employers." We reverse and hold that the trial court abused its
discretion in compelling production of plaintiffs' social security numbers because (1) the
information sought was not relevant and (2) discovery was for the improper purpose of
intimidating plaintiffs from exercising their rights. MCR 2.302(C).
Defendant-appellee Linda Ekema and defendant Blanche Taylor own Five Star Cleaning.
In February 2001, plaintiffs orally agreed to perform maintenance services for defendants for $8
an hour. In mid-April 2001, Ekema laid off plaintiffs for several days so that she could resolve
problems she was having with other employees. On April 19, 2001, Ekema informed plaintiffs
that they could return to work, but that they would now be paid for each apartment cleaned.
Plaintiffs allege that defendants failed to pay them for work performed between March 9 and
April 26, 2001. Cabrera claims that she is owed $960 in wages earned for this period; Portillo
claims she is owed $2,094. In May 2001, Ekema sent Cabrera a check for $244.53 and Portillo a
check for $421.81, writing "final paycheck paid in full" on the face of each check. Plaintiffs did
not cash these checks.
On January 30, 2002, plaintiffs brought suit against Ekema and Taylor to recover back
pay for wages actually earned. Plaintiffs' complaint alleges: (1) violations of the Fair Labor
Standards Act (FLSA), 29 USC 201 et seq., (2) violations of the Employee Right to Know Act,
MCL 423.501 et seq., (3) breach of contract, (4) unjust enrichment, and (5) conversion. On
April 30, 2003, Ekema served on plaintiffs interrogatories and requests for documents seeking
discovery of plaintiffs' social security numbers and immigration documents, including the date
on which they were obtained. Plaintiffs' answers asserted that the information requested was not
discoverable because it was irrelevant to the subject matter and to Ekema's defenses. On
May 20, 2003, Ekema filed a motion to compel interrogatory answers, arguing that the requested
information was either relevant or might lead to relevant information. Plaintiffs filed their
response on May 30, 2003, arguing that (1) their immigration status is irrelevant to any material
aspect of the case, (2) they are entitled to the wages, regardless of immigration status, and (3)
discovery of the requested information was sought for the improper purpose of intimidating
plaintiffs to withdraw the lawsuit.
The trial court heard Ekema's motion June 2, 2003. At the hearing, Ekema's defense
counsel represented that his client asked for and received social security numbers from plaintiffs
when they were hired, but that his client had since become concerned about plaintiffs'
immigration status. Defense counsel also asserted that there was a factual dispute between the
parties regarding whether plaintiffs stopped working for defendants on either April 3 or April 26,
2002. Defense counsel emphasized that plaintiffs needed to have "clean hands" to succeed on
either their unjust enrichment or conversion claims. Concerning the breach of contract count,
defense counsel argued that there were potential questions regarding whether an illegal alien
could contract for employment or allege a breach of an employment contract. Regarding the
FLSA count, defense counsel queried whether illegal aliens were entitled to liquidated damages.
Finally, in the words of counsel for Ekema, if plaintiffs could not produce legitimate social
security numbers or immigration documents, "we have a much more complicated lawsuit than . .
. plaintiff[s] would like you to believe."
Plaintiffs' counsel responded that the issue underlying all counts of the complaint was
"the fact that the plaintiffs worked and they did not receive wages for work that has already been
From the bench, the trial court granted Ekema's motion in part. The trial court ordered
plaintiffs to disclose their social security numbers, but ordered that defendants could use them
only in a limited manner. Plaintiffs were not compelled to provide defendants with copies of
their green cards or alien work permits.
The trial court's June 2, 2003, bench ruling was effectuated by an order entered August
20, 2003. In its partial protective order, the trial court ordered the following with regard to
plaintiffs' social security numbers:
i. Said social security numbers may be used by Defendants for the
purposes of this litigation only;
ii. The Defendants may use said social security numbers to inquire in
writing with the Social Security Administration for the limited purpose of
determining the amount of funds that have been credited to the Plaintiffs' social
security numbers as a result of work the Plaintiffs performed specifically for the
Defendants, and not for other employers;
iii. The Defendants may not use or communicate said social security
numbers or in any other way release said social security numbers to any other
entity other than: this Court for the purposes of this litigation, only; the U.S.
Social Security Administration for the reasons set forth in [ii] above, and if
necessary to substantiate a business expense on any tax return for Defendants to
the U.S. Department of Internal Revenue Service and to comply with other rules
and regulations of the IRS.
Following the denial of their motion for reconsideration, plaintiffs sought leave to appeal.
On appeal, plaintiffs argue that their social security numbers are not relevant in
determining the amount of their unpaid wages for work already performed. We agree.
This Court reviews rulings on motions to compel discovery for an abuse of discretion.
Ligouri v Wyandotte Hosp & Med Ctr, 253 Mich App 372, 375; 655 NW2d 592 (2002). Further,
our court rules implement "an open, broad discovery policy . . . ." Reed Dairy Farm v
Consumers Power Co, 227 Mich App 614, 616; 576 NW2d 709 (1998). Parties are permitted to
obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the
lawsuit, whether it relates to the claim or defense of the party seeking discovery or to the claim
or defense of another party. MCR 2.302(B)(1).
However, a trial court should also protect the interests of the party opposing discovery so
as not to subject that party to excessive, abusive, or irrelevant discovery requests. In re
Hammond Estate, 215 Mich App 379, 386; 547 NW2d 36 (1996).
In this regard, MCR 2.302(C)1 provides, in pertinent part:
Protective Orders. On motion by a party or by the person from whom
discovery is sought, and on reasonable notice and for good cause shown, the court
in which the action is pending may issue any order that justice requires to protect
a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following orders:
(1) that the discovery not be had;
Subrule C is based on FR Civ P 26(c). See 1985 staff comment to MCR 2.302.
(2) that the discovery may be had only on specified terms and conditions,
including a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other
than that selected by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the
discovery be limited to certain matters . . . .
In the present case, the production of plaintiffs' social security numbers is clearly not
relevant in determining liability for unpaid wages for the reason that it is the duty of the
employer, not the employee, to report earned wages to the federal Wage and Hour Division. 29
USC 211(c). Further, by operation of 29 CFR 516.2, all records of employment must be
maintained and preserved by the employer. Accordingly, the amount of wages earned by
plaintiffs as reported to the appropriate federal agencies, including the Social Security
Administration, would have been reported by defendants, not the plaintiffs. Because this
information is known to Ekema and within her possession, the discovery order is irrelevant to the
Further, we note that the Immigration Reform and Control Act (IRCA) makes it unlawful
to knowingly employ undocumented aliens. 8 USC 1324a(a). At the time of hiring, employers
are required to verify that each employee is authorized to work in the United States and to
complete an employment eligibility verification form, attesting that the employer has examined
certain types of documents and has verified that the potential employee is not an unauthorized
alien. 8 USC 1324a(b). Civil fines may be imposed on an employer that violates the verification
requirements or knowingly employs an unauthorized alien. 8 USC 1324a(e)(4) and (5). A
pattern or practice of knowingly employing unauthorized aliens may result in the infliction of
criminal punishment. 8 USC 1324a(f). In addition, the IRCA provides that the provisions of 8
USC 1324a preempt any state from imposing civil or criminal sanctions upon those who employ
unauthorized aliens. 8 USC 1324a(h)(2). An employer is required to "make, keep, and preserve
such records of the persons employed by him and of the wages, hours, and other conditions and
practices of employment maintained by him . . . ." 29 USC 211(c).
For an alien to be "authorized" to work in the United States, the alien must possess a
valid "social security account number card," 8 USC 1324a(b)(1)(C)(i), or "other documentation
evidencing authorization of employment in the United States which the Attorney General finds,
by regulation, to be acceptable for purposes of this section." 8 USC 1324a(b)(1)(C)(ii).
Plaintiffs' complaint alleges, in part, a violation of the FLSA. Therefore, federal case law
on the discovery question is instructive. Auto Club Ins Ass'n v Frederick & Herrud, Inc (After
Remand), 443 Mich 358, 373 n 24; 505 NW2d 820 (1993); 2 Longhofer, Michigan Court Rules
Practice, pp 192-193.
In Liu v Donna Karan Int'l, Inc, 207 F Supp 2d 191 (SD NY, 2002), a class of Chinese
immigrant workers brought an action against their employer, seeking an FLSA award of unpaid
wages. The employer moved to discover the workers' immigration status. The federal district
court held that evidence of the Chinese workers' immigration status was not relevant in an FLSA
action, emphasizing the difference between an award of posttermination back pay for work not
actually performed and FLSA awards of unpaid wages. The court in Liu noted that "even if such
discovery were relevant, and at this juncture it appears not to be, the risk of injury to the
plaintiffs if such information were disclosed outweighs the need for its disclosure." Id. at 192193. Indeed, the court ruled that, even if the parties were to enter into a confidentiality
agreement restricting the disclosure of such discovery, as the employer suggested, there would
still remain the danger of intimidation and the danger of destroying the cause of action that
would inhibit the plaintiffs in pursuing their rights. Id. at 193.
Second, in Flores v Amigon, 233 F Supp 2d 462 (ED NY, 2002), the case upon which
plaintiffs relied heavily, the employee sought unpaid wages under the FLSA and the employer
sought discovery of the employee's immigration documents, social security number, and
passport. Like the Liu court, the federal district court held that discovery of the employee's
immigration status was not relevant to an FLSA claim for unpaid wages for work already
performed and that the potential for prejudice from disclosure far outweighed whatever minimal
value the information might have. The court reasoned that
enforcing the FLSA's provisions requiring employers to pay proper wages to
undocumented aliens when the work has been performed actually furthers the
goal of the IRCA, which requires the employer to discharge any worker upon
discovery of the worker's undocumented alien status. 8 U.S.C. § 1324a(a)(2). If
employers know that they will not only be subject to civil penalties, 8 U.S.C. §
1324a(e)(4)(A), and criminal prosecution, 8 U.S.C. § 1324a(f)(1), when they hire
illegal aliens, but they will also be required to pay them at the same rates as legal
workers for work actually performed, there are virtually no incentives left for an
employer to hire an undocumented alien in the first instance. Whatever benefit an
employer might have . . . gained by paying less than the minimum wage is
eliminated and the employer's incentive would be to investigate and obtain proper
documentation from each of his workers. [Id. at 464 (citations omitted).]
On the basis of the distinction between undocumented workers seeking back pay for
wages actually earned and those seeking back pay for work not performed, both the Liu and
Flores courts found the cases at bar distinguishable from the decision of the United States
Supreme Court in Hoffman Plastic Compounds, Inc v Nat'l Labor Relations Bd, 535 US 137,
149; 122 S Ct 1275; 152 L Ed 2d 271 (2002), in which the Court held that awarding back pay to
an undocumented alien "for years of work not performed, for wages that could not lawfully have
been earned, and for a job obtained in the first instance by a criminal fraud" ran counter to the
federal immigration policy.2 We agree with the distinction noted by the federal district courts
and hold that plaintiffs' social security numbers are not relevant to the limited purpose ordered by
the trial court. For this reason, the trial court abused its discretion by compelling production of
plaintiffs' social security numbers.
This Court has examined Hoffman within the context of a worker's compensation appeal. See
Sanchez v Eagle Alloy, Inc, 254 Mich App 651, 670-673; 658 NW2d 510 (2003).
As their second issue, plaintiffs argue that the discovery order was an abuse of discretion
because discovery was sought for an improper purpose. Again, we agree.
The ostensible purpose of Ekema's discovery request was to determine the amount of
plaintiffs' wages that defendants reported to the Social Security Administration. Because
defendants already have this information, the facial purpose of the discovery request was
patently disingenuous. The true motivation for the attempted discovery of plaintiffs' immigration
documents and social security numbers can be discerned from defense counsel's statement at the
June 2, 2003, hearing that if plaintiffs were unable to produce legitimate immigration documents
and social security numbers, "we [will] have a much more complicated lawsuit . . . than
plaintiff[s] would like you to believe."
After our review, we conclude that the discovery request by Ekema was made for the
improper purpose of intimidating plaintiffs to withdraw their lawsuit and forgo their legal rights
to recover unpaid wages for work already performed. Because our courts will not sanction
discovery for improper purposes, MCR 2.302(C), we hold that the trial court abused its
discretion by compelling production of plaintiffs' social security numbers.
Finally, at appellate oral argument, counsel for Ekema appeared to have conceded that
the limited purpose for discovery specified in the lower court's order is not legitimate.3
Nonetheless, counsel argued that plaintiffs' social security numbers could have been ordered for
purposes of impeachment. In general, issues not preserved and ruled upon by the trial court will
not be decided on appeal. Etefia v Credit Technologies, Inc, 245 Mich App 466, 471-472; 628
NW2d 577 (2001). Further, the issue counsel raises on appeal is based on speculation and
conjecture. Collateral impeachment need not be entertained by either the trial court or this
Court. Wigginton v City of Lansing, 129 Mich App 53, 63; 341 NW2d 228 (1983); Cook v
Rontal, 109 Mich App 220, 229; 311 NW2d 333 (1981); MRE 403.4
During oral argument, appellee's counsel conceded that, after further investigation of the facts
and law, the sole issue is one of credibility.
MRE 403 provides: "Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
/s/ Joel P. Hoekstra
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello