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Hicks v. Les Schwab Tire Centers of Portland, Inc.

United States District Court, D. Oregon

May 24, 2019

ELIZABETH HICKS, Plaintiff,
v.
LES SCHWAB TIRE CENTERS OF PORTLAND, INC., Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Elizabeth Hicks (“Hicks”) brings this action against Les Schwab Tire Centers of Portland, Inc. (“Les Schwab”). Trial is set for June 4, 2019. Pending before the Court are the parties' motions in limine, objections to proposed witnesses and exhibits, and proposed jury instructions. The parties have conferred and resolved many of the disputed issues. (ECF No. 81.) The Court resolves the remaining disputed issues as follows.

         I. Les Schwab's Objections to Hicks' Exhibits

         A. Exhibit No. 1

         Les Schwab asks the Court to exclude as irrelevant a letter to a Bureau of Labor and Industries (“BOLI”) investigator. Hicks has agreed to withdraw this letter from Exhibit No. 1. (ECF No. 81.)

         B. Exhibit No. 3

         Les Schwab asks the Court to exclude as irrelevant duplicative portions of the acceptance notice from Hicks' workers' compensation claim. Hicks has agreed to withdraw the duplicates and only submit the notice of acceptance of Hicks' workers' compensation claim. (ECF No. 81.)

         C. Exhibit No. 26

         Les Schwab asks the Court to exclude as irrelevant and cumulative Les Schwab's payroll records. Hicks has agreed to withdraw the cumulative pages from Exhibit 26 and submit a revised Exhibit 26. (ECF No. 81.)

         D. Exhibit No. 28

         Les Schwab asks the Court to exclude as irrelevant a list of employees working at its store. Les Schwab also objects to the list because it includes the home addresses of Les Schwab's employees. Hicks responds that the list is relevant because it includes the number of employees at Les Schwab (which Hicks must show to prove that the Americans with Disabilities Act (“ADA”), Oregon's ADA, and Oregon's workers' compensation retaliation statute apply to Les Schwab), and because it includes relevant dates of hire.

         The Court agrees with Hicks that the list is relevant to her claims, and therefore overrules Les Schwab's objection. See Clackamas Gastroenterology Assocs., P.C. v. Welles, 538 U.S. 440, 441-42 (2003) (“Under the ADA[, ] an ‘employer' is not covered unless its work force includes 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.'”) (quoting 42 U.S.C. § 12111(5)); Or. Rev. Stat. § 659A.106 (“The requirements of ORS 659A.112 to 659A.139 apply only to employers who employ six or more persons.”). As discussed at the pretrial conference, Hicks will redact the column titled “address, ” and will redact the “BOLI” bates number on the second page of the exhibit.

         E. Exhibit No. 30

         Les Schwab asks the Court to exclude as irrelevant the earning statements from Les Schwab's store. The Court overrules Les Schwab's relevance objection because Hicks intends to introduce the exhibit to counter Les Schwab's argument that Hicks' layoff was necessary due to a downturn in business. SeeFed. R. Evid. 401. However, Les Schwab has reserved the right to challenge Exhibit 30 for a lack of foundation, and therefore the Court does not pre-admit Exhibit 30.

         F. Exhibit No. 31

         Les Schwab asks the Court to exclude as irrelevant an Employee Conference Record for one of Hicks' co-workers. Hicks has agreed to withdraw this exhibit. (ECF No. 78.)

         G. Exhibit No. 32

         Les Schwab withdrew its relevance and hearsay objections to Exhibit 32 ...


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