Beaver v. Delicate Palate Bistro, Inc. et al

Filing 16

OPINION & ORDER: Beaver's informal letter request for a protective order is Granted in Part and Denied in Part. Signed on 9/12/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
APRIL BEAVER,
Plaintiff,
3:17-CV-644-PK
OPINION AND
ORDER

v.

DELICATE PALATE BISTRO, INC., and
GEOFFREY WILLIAMS, SR.,
Defendants.
PAPAK, Magistrate Judge:
Plaintiff April Beaver filed this action against defendants Delicate Palate Bistro, Inc. (the
"Bistro"), and Geoffrey Williams, Sr., on April 24, 2017. Beaver alleges that at all material
times she was employed by the Bistro as a sous chef, and that Williams was the Bistro's chief
executive officer. Beaver further alleges that Williams induced her to relocate her family in order
to accept the job at the Bistro through promises that she would be allowed to pump breast milk
during her two daily legally-mandated break periods, and that her pay would be increased by
$2.00 per hour after two weeks on the job. Beaver further alleges that she was given only one
break per day, that she was harassed in consequence of using her break to pump breast milk, and
that her pay was raised by only $0.50 after two weeks on the job. Beaver further alleges that after
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she complained about the foredescribed broken promises, her hours were reduced, and that after
she complained about the reduction in her hours defendants terminated her employment. Arising
out of the foregoing, Beaver alleges defendants' liability under Oregon statuto1y law for gender
discrimination, gender discrimination retaliation, whistleblowing, and wage claim retaliation,
under both federal and Oregon statutory law for unpaid overtime wages, under Oregon statutmy
law for unpaid wages at time of termination, and under Oregon common law for breach of
contract. Beaver seeks monetmy damages in unspecified amounts, plus award of her fees and
costs. This comt may properly exercise federal-question jurisdiction over Beaver's federal claim
pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental jurisdiction over her statelaw claims pursuant to 28 U.S.C. § 1367.
Now before the comt is Beaver's informal letter motion for a protective order, by and
through which Beaver seeks this court's order preventing defendants from issuing broad
subpoenas due es tee um to certain of her former employers. I have considered the informal letter
motion and all of the pleadings and papers on file. For the reasons set froth below, Beaver's letter
motion is granted in part and denied in part as discussed below.
LEGAL STANDARD

Pursuant to Federal Civil Procedure Rule 26(c), a court may for "good cause" issue a
protective order "to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense .... " Fed. R. Civ. P. 26(c)(l). To obtain such a protective order, the
party resisting discovery or seeking limitations must show "good cause" for its issuance by
demonstrating harm or prejudice that will result from the discove1y. Fed. R. Civ. P. 26( c)(1 ); see
also Phillips ex rel. Estates ofByrd v. Generallvfotors Corp., 307 F.3d 1206, 1210-1211 (9th

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Cir. 2002). Generally, a patty seeking a protective order must meet a "heavy burden" to show
why discove1y should be denied. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir.
1975).
ANALYSIS

Defendants specifically wish to issue subpoenas duces tecum to all of Beaver's former
employers who employed Beaver at any time during the past five yeai·s. The documents
defendants wish to subpoena from each such employer are as follows:
The entire personnel file of former employee April M. Beaver, a/k/a April Kipfer, .
. . including but not limited to payroll records, pay rates, employee evaluations
and performance appraisals, perfo1mance reports, interviews, conferences and
counseling sessions, attendance and absentee records, benefits, notes, repo1ts,
tests, memoranda, applications and resumes, coITespondence, medical data,
personnel records, employment history, records in computer readable form, and
any and all other pe1tinent writings or materials of any kind in [each such
employer's] possession or under [each such employer's] control.
Beaver takes the position that the scope of the contemplated records subpoenas are too
broad, in that defendants seek, in addition to applications for employment, job descriptions,
performance evaluations or reviews, compensation, training, complaints made by or against her,
and documents reflecting the reasons for the termination of her employment, documents
including "notes, repo1ts, tests, memoranda, ... correspondence, medical data, personnel records,
... records in computer readable fmm, and any and all other pertinent writings or materials of
any kind." Beaver requests that this comt issue a protective order limiting the documents
defendants may seek from her former employers of the last five years to the following:
Those documents from plaintiffs personnel file consisting of her application for
employment, job descriptions, performance evaluations or reviews, compensation,
training, complaints made by or against her, and documents reflecting the reasons
for the termination of her employment.

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I agree with Beaver that plaintiffs have a legitimate privacy interest in the contents of
their employment records. See, e.g., Abu v. Piramco SEA-TAC, Inc., Case No. 08-1167, 2009
U.S. Dist. LEXIS 12626, *4-5 (W.D. Wash. Feb. 5, 2009). I fi.uiher agree with Beaver that
public 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 C01p., 88 F.R.D. 518, 524 (D. Haw.
1980). Neve1iheless, 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 ofSan Diego, Case No. 12-CV-1696,
2013 U.S. Dist. LEXIS 66521, *4 (S.D. Cal. May 8, 2013).
Defendants argue that all of the information sought is of clear relevance to Beaver's
claims and to their defenses, and moreover that much of the information was placed specifically
at issue in this matter as a direct consequence of the litigation positions Beaver has taken herein.
Specifically, defendants assert that at the time Beaver applied to work at the Bistro, she declined
permission for the Bistro to contact her current employer, suggesting that she was between
employment positions at the time of her application, whereas Beaver now alleges that at the time
of her application, she was employed as a head chef at a restaurant in Gladstone, Oregon. In
addition, defendants argue, Beaver claims expertise, experience, and freedom from restrictions
on her ability to sustain full-time work that it is defendants' position were not reflected in her
employment services to the Bistro. Defendants fi.uiher argue that Beaver has claimed that they
caused her to suffer a medical condition relating to her production of breast milk, and that it is

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their right to dete1mine whether this was a pre-existing condition.
I note preliminarily that a foimal protective order is already in place in this action, such
that any documents defendants may receive from any of Beaver's former employers will not be
used or disclosed for any purpose umelated to this litigation.
I agree with the defendants that they are entitled to all of the information within the scope
of their proposed records subpoena from Beaver's foimer employer located in Gladstone, Oregon,
for whom she alleges she worked as a head chef at the time she accepted an offer of employment
from the Bistro (and from any more recent foimer employers, if any such exist). The
circumstances of Beaver's employment by the Gladstone restaurant, and the timing and
circumstances of the termination of that employment, are highly relevant to issues raised by her
claims and allegations in this action. Similarly, whether Beaver suffered from any medical
condition the etiology of which she now attributes to the conduct of the defendants at or prior to
the termination of her foimer employment is likewise directly relevant to the claims asserted
herein. Because the records within the scope of defendants' proposed subpoenas duces tecum are
clearly relevant to Beaver's claims, and because it does not appear that the info1mation contained
therein would otherwise be readily available to the defendants, no grounds exist for issuing the
requested protective order as to the contemplated subpoena(s) intended for Beaver's former
employer located in Gladstone, Oregon, for whom she alleges she worked as a head chef (and
from any more recent foimer employers, if any exist). As to that employer or employers,
defendants may issue their proposed subpoena or subpoenas in the form they have proposed.
By contrast, defendants' need for medical records and for detailed information regarding
the circumstances of Beaver's foimer employment positions is relatively attenuated as to

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employment positions Beaver held prior to her asse1ted position as a head chef at a Gladstone
restaurant. Specifically, defendants have not established the relevance of medical conditions
Beaver may have experienced in the past, but which have had no effect on her recent ability to
perform job duties or to sustain full-time employment. Similarly, details regarding the precise
timing of her departure from such former employment positions are not clearly relevant to
Beaver's allegation that she was employed at the time she accepted the Bistro's job offer.
Because defendants have not met their burden to show that the objected-to portions of the
proposed records subpoenas are calculated to lead to the production of clearly relevant evidence,
the requested protective order is granted to the extent defendants contemplate issuing subpoenas
to former employers Beaver worked for prior to working as head chef at a Gladstone restaurant.
As to such fotmer employers, defendants may issue the contemplated subpoenas seeking only the
following:
Those documents from plaintiffs personnel file consisting of her application for
employment, job descriptions, performance evaluations or reviews, compensation,
training, complaints made by or against her, and documents reflecting the reasons
for the termination of her employment.

CONCLUSION
For the reasons set forth above, Beaver's informal letter request for a protective order is
granted in patt and denied in part as discussed above.

Dated this 12th day of September,

Honorable Paul Papak
United States Magistrate Judge

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