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Baker v. Gladstone Auto, LLC

United States District Court, D. Oregon, Portland Division

June 12, 2018

ROBERT BAKER, Plaintiff,
v.
GLADSTONE AUTO, LLC, Defendant.

          ORDER

          PAUL PAPAK, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robert Baker brings this employment discrimination action under Oregon law and 42 U.S.C. § 1981 against Defendant Gladstone Auto LLC, dba Toyota of Gladstone. Plaintiff claims that Defendant discriminated against him and harassed him because he is Mexican-American, and retaliated against him for opposing discrimination.

         The parties have informally asked this court to address Plaintiffs objections to Defendant's proposed subpoenas seeking documents from Plaintiffs current employer, Ron Tonkin Honda (Ron Tonkin), and from Summit Auto Group (Summit), where Plaintiff worked briefly after leaving Defendant.

         LEGAL STANDARDS

         In Beaver v. Delicate Palate Bistro, Inc., No. 3:17-cv-644-PK, 2017 WL 4011208, at *2 (D. Or. Sept. 12, 2017), I addressed a similar discovery issue:

[P]iaintiffs have a legitimate privacy interest in the contents of their employment records. See, e.g., Abu v. Piramco SEA-TAC, Inc., No. 08-1167, 2009 WL 279036, at *l-2, 2009 U.S. Dist. LEXIS 12626, *4-5 (W.D. Wash. Feb. 5, 2009). . . . [P]ublic policy reasons militate against lightly invading that privacy interest, in that an expectation of privacy in employment records encourages candid employment evaluations and avoids impairment of employee morale, See, e.g., In re Hawaii Corp., 88 F.R.D. 518, 524 (D. Haw. 1980). Nevertheless, the courts of the Ninth Circuit generally allow discovery of employment records notwithstanding such privacy and public policy concerns where the material sought is clearly relevant to claims or defenses at issue and the information contained in the material is not otherwise readily available. See, e.g., Newell v. County of San Diego, No. 12-CV-1696,2013 WL 1932915, at *2, 2013 U.S. Dist. LEXIS 66521 *4 (S.D. Cal. May 8, 2013).

         DISCUSSION

         Plaintiff asserts that he can provide the documents Defendant seeks in the two subpoenas, thereby avoiding issuing subpoenas to Plaintiffs subsequent employers, Plaintiff argues that "[s]erving subpoenas on these two employers has the practical effect of smearing Plaintiffs name in the industry for filing a lawsuit and creating a chilling effect on future plaintiffs." However, Plaintiffs counsel's suggestion that he himself could obtain personnel files and other records directly from Plaintiffs employers would if anything emphasize that Plaintiff is bringing a lawsuit. As Defendant notes, employers are legally prohibited from discriminating against an employee for bringing a discrimination lawsuit. Defendant also states that the parties have a protective order in place now, ECF No. 12, so documents provided by Summit or Ron Tonkin may not be used or disclosed for any purpose other than this litigation. I conclude that Defendant's proposed subpoenas seek relevant documents, subject to the modifications below, and would not improperly invade Plaintiffs privacy.

         Defendant requests Plaintiffs employment applications, Although Plaintiff offers to provide his applications, I find that Defendant may seek them directly from the employers.

         Defendant requests Plaintiffs resumes. Plaintiff states in a Rule 26 disclosure, he notified Defendant that he does not have a resume. Based on Plaintiffs statement, I agree with Plaintiff that Defendant should omit the request for resumes from the subpoenas.

         Defendant requests Plaintiffs attendance records. Defendant argues that because Plaintiff took time off with Defendant because of an allegedly serious health condition, his attendance records would show "how often he was able to work" after leaving Defendant. Plaintiff responds that he will provide his attendance records. I conclude that Defendant is entitled to seek these attendance records directly from Plaintiffs employers. See Tran v. Wells Fargo Bank, N.A., 3:15-cv-00979-BR, 2017 WL 1234131, at *3 (D. Or. Jan. 20, 2017) ("Plaintiffs current employment records are relevant to his claims in light of his allegation that Defendant's conduct resulted in 'damage to [Plaintiffs] career' and resulted in his 'lack of confidence in the banking system"').

         Defendant requests disciplinary records relating to discrimination claims filed by or against Plaintiff. I find that Defendant may seek such records, but that the subpoena may not request records on discrimination claims specifically, but rather only Plaintiffs disciplinary records, if any. See Id. (allowing the defendant to seek "performance evaluations, disciplinary records, complaints, and records of complaints involving Plaintiff).

         Defendant requests wage and income records for Plaintiff. Plaintiff responds that he has already provided his copies of these records. I find that Defendant may seek these documents directly from Plaintiffs subsequent employers.

         Defendant seeks performance evaluation records, arguing that they are relevant to show "Plaintiffs work qualifications and work-related habits." I agree with. Judge Brown's ruling in Tran, cited ...


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