Washburn v. Hoover Chrysler Jeep of Savannah, Inc.
Filing
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ORDER denying 16 Motion to Quash. Signed by Magistrate Judge G. R. Smith on 6/14/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SARAH WASHBURN,
Plaintiff,
v.
Case No. CV412-005
HOOVER CHRYSLER JEEP
OF SAVANNAH, INC.
Defendant.
ORDER
In this employment-discrimination case the Court is asked to quash
a subpoena. Doc. 16. While employed as a service advisor at Hoover
Chrysler Jeep of Savannah, Inc., Sarah Washburn was fired because she
“did not fit the future plans of the dealership.” Doc. 15 at 2 ¶ 7. 1 She
“was not counseled or otherwise disciplined and contends she was fired
because of her sex, female, and her orientation, gay.” Id. In addition to
collecting unemployment insurance, doc. 18 at 1-2, she sued Hoover for,
inter alia, employment discrimination. Doc. 15 at 3-4 ¶ 9; see also doc. 1-
4 at 2-3 (complaint). In quest of discoverable information on Hoover’s
For the purposes of this Order only, the Court is accepting as true plaintiff’s factual
assertions within the parties’ Joint Status Report.
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reason for firing her, she subpoenaed the Georgia Department of Labor
(GDL) for her unemployment hearing transcript. 2 Doc. 16-2.
Invoking Fed. R. Civ. P. 45(c)(3)(A)(iv), the GDL moves to quash
that subpoena, doc. 16, contending that O.C.G.A. § 34-8-121 -- a privacy
protecting statute -- prohibits its release. Doc. 16-1 at 2. The GDL says
it “will need an order in accordance with O.C.G.A. § 34-8-126 3 to disclose
In Georgia, unemployment compensation is denied to those fired for, inter alia,
failing to obey the employer’s instructions. See, e.g., McCauley v. Thurmond, 311 Ga.
App. 636, 639-41 (2011) (evidence supported conclusion that unemployment
compensation claimant was terminated from her employment because she failed to
obey orders, rules, or instructions, and, thus, she was not entitled to benefits);
O.C.G.A. § 34-8-194(2); G A . E MPLOYMENT LAW § 6:4 (4th ed. Apr. 2012).
2
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That statute provides:
Information or records deemed private and confidential under this chapter
shall be available to parties to judicial or formal administrative proceedings
only upon a finding by the presiding officer that the need for the information
or records in the proceeding outweighs any reasons for the privacy and
confidentiality of the information or records. Information or records deemed
private and confidential under this chapter shall not be available in discovery
proceedings unless the court in which the action has been filed has made the
finding specified above. A judicial or administrative subpoena or order directed
to the department must contain this finding. A subpoena for records or
information held by the department may be directed to and served upon any
employee of the department, but the department may specify by rule or
regulation which employee shall produce the records or information in
compliance with the subpoena.
O.C.G.A. § 34-8-126 (emphasis added). O.C.G.A. § 34-8-126 may be read to conflict
with O.C.G.A. § 34-8-121(b)(3) (“Information, statements, transcriptions of
proceedings . . . shall not be subject to subpoena in any civil action or proceeding,
published, or open to public inspection, other than to public employees in the
performance of their public duties, in any manner revealing the individual's or
employing unit's identity; but any claimant, employer, or a duly authorized
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whether there are responsive records or to produce or testify about such
records.” Doc. 16-1 at 3 n. 2 (footnote added).
Washburn says the GDL “claims examiner received testimony and
documentary evidence and allowed cross-examination and rebuttal, as
well as argument.” Doc. 18 at 2. Ultimately, she points, out, id., the
claims examiner granted her unemployment compensation, finding that
“[t]he facts show that you did not fail to follow employer’s rules, orders
or instructions.” Doc. 18-5 (GDL decision awarding Washburn benefits).
representative, at a hearing before an administrative hearing officer or the board of
review, shall be supplied with information from such records to the extent necessary
for the proper presentation of his or her claim.”).
However, the GDL itself interprets § 34-8-126 as controlling -- it states to this
Court that it requires a court order to comply with the subpoena. Doc. 16-1 at 3 n. 2;
see also id. n. 3 (explaining how it will comply, operationally, once it receives a court
order). “[J]udicial deference is to be afforded the agency's interpretation of statutes it
is charged with enforcing or administering,” Northeast Georgia Cancer Care, LLC v.
Blue Cross and Blue Shield of Georgia, Inc., ___ Ga. App. ___, 2012 WL 1021046 at *
4 (Mar. 28, 2012) (quotes and cite omitted), though it is not absolute. Georgia Power
Co. v. Ga Pub. Serv. Com'n, 296 Ga. App. 556, 559 (2009).
The GDL’s statutory interpretation is reasonable, as it honors the balance the
Georgia legislature articulated in O.C.G.A. § 34-8-120(a) (“This article is intended to
reconcile the free access to public records . . . and the discovery rights of judicial and
administrative systems with the historical confidentiality of certain records of the
department and the individual's right of privacy.”). It also jibes with § 34-8-122(b),
reproduced in n. 4 infra, which governs the use of such information in court. For
that matter, the scheme protects the identity of the parties and what they say to the
GDL. But here the parties’ identities are already publicly disclosed in this lawsuit
and, as explained infra, what was said at the GDL hearing is especially relevant to
what is expected to be testified to in this Court.
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Washburn contends that the hearing transcript is “relevant and
amenable to a subpoena.” Doc. 18 at 4.
Asserting its own privacy interest, Hoover wants Washburn’s
subpoena quashed, arguing that “Georgia law protects employers like
Hoover by providing that their agents’ testimony in unemployment
hearings will be ‘confidential and not subject to civil subpoena.’ O.C.G.A.
§ 34-8-121(b)(3).” Doc. 19 at 2. And assertions that the transcript is
needed for cross-examination and impeachment purposes, 4 it contends, is
insufficient to overcome Georgia’s straightforward statutory prohibition.
Id. Hoover concludes that “Washburn’s arguments about relevancy and
The statute bars the admissibility of such information in court, though not its use
for cross-examination purposes:
4
Any finding of fact or law, judgment, determination, conclusion, or final order
made by an adjudicator, examiner, hearing officer, board of review, or any
other person acting under the authority of the Commissioner with respect to
this chapter shall not be admissible, binding, or conclusive in any separate or
subsequent action or proceeding between a person and such person's present
or previous employer brought before any court of this state or the United States
or before any local, state, or federal administrative agency, regardless of
whether the prior action was between the same or related parties or involved
the same or similar facts; provided, however, any finding of fact or law,
judgment, determination, conclusion, or final order made as described in this
chapter shall be admissible in proceedings before the Commissioner.
O.C.G.A. § 34-8-122(b) (emphasis added).
4
admissibility are thus premature and irrelevant,” though it does not
explain why.
The Court DENIES the GDL’s motion to quash. Doc. 16. The
essence of Washburn’s claim is that Hoover unlawfully discriminated
against her. Her claim thus contemplates burden-shifting levels of proof
over whether Hoover’s proffered discharge reason (presumably, that she
failed to obey her employer) is pretextual. See, e.g., Castillo v. Roche
Laboratories, Inc., 2012 WL 1648873 at * 2 (11th Cir. May 11, 2012) (“We
evaluate Title VII claims based upon circumstantial evidence using the
burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).”); see also id.
at * 3 (“A plaintiff may show pretext either directly, by persuading the
court that a discriminatory or retaliatory reason more likely than not
motivated the employer, or indirectly, by showing that the proffered
reasons are unworthy of credence.”).
What Hoover’s management said at a GDL hearing about its
discharge reason is obviously relevant to the core issue here, where only
reasonable relevancy need be shown. Barton v. Parker, 2001 WL
34049915 at * 2 (N.D. Ga. Dec. 13, 2001) (enforcing administrative
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subpoena to GDL in quest of security and passport numbers because they
were reasonably relevant to show whether onion farmer fired United
States citizens in order to hire immigrant laborers). The Court finds
that “that the need for the information or records in [this] proceeding
outweighs any reasons for the privacy and confidentiality of the
information or records,” O.C.G.A. § 34-8-126, and intends this Order to
assist the GDL in complying with that statute. See doc. 16-1 at 3 n. 3.
SO ORDERED this 14th day of June, 2012.
•_.-'•-;
.__.___,
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UNiTED STE[ES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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