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Elizabeth Thomason v. Skywest Airlines

September 14, 2012


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge


Plaintiff Elizabeth Thomason filed her complaint in Fresno County Superior Court on December 21, 2011. She asserted claims of failure to prevent discrimination and harassment and discrimination and harassment on the basis of religious creed, failure to accommodate religious observance, and retaliation. Generally speaking, Plaintiff contends that as a customer service agent, she received "good performance evaluations and wage increases" prior to bidding on a full time customer service position at Defendant SkyWest Airlines, Inc. that would allow for accommodation of her religious beliefs. In spite of the availability of a shift that would permit Plaintiff to attend Sunday morning religious services, and instead of the position for which she bid, Plaintiff was regularly given mandatory shift assignments that precluded religious service attendance. Moreover, despite Plaintiff's repeated requests for full time positions and accommodation, her requests were ignored by Defendant. Then, in July 2009, Plaintiff filed a written complaint with SkyWest for discrimination and failure to accommodate her religious observance. Following her complaint, Plaintiff was subjected to harassment and was eventually forced to resign due to a hostile work environment.

SkyWest removed the action to this Court on January 20, 2012. On January 24, 2012, Plaintiff filed a motion to remand the action to state court. On March 9, 2012, this Court issued Findings and Recommendations wherein it was recommended that Plaintiff's motion to remand be denied. On March 28, 2012, District Judge Lawrence J. O'Neill issued an Order Adopting Findings and Recommendations.

Following an informal telephonic conference with the parties on July 18, 2012, the Court extended the non-expert discovery deadline from August 15 to September 14, 2012.

On July 26, 2012, Plaintiff filed a Notice of Motion to Quash Deposition Subpoenas for

Production of Business Records, supporting points and authorities, and supporting declarations.

In a minute order dated July 31, 2012, the parties were ordered to personally appear for the August 24, 2012, hearing, and were further ordered to file a joint statement regarding the discovery dispute pursuant to Local Rule 251(c). On August 17, 2012, the parties timely filed their joint statement.

On August 24, 2012, Kirby Canon personally appeared on behalf of Plaintiff; Alex Craigie personally appeared on behalf of Defendant. Counsel were directed to meaningfully meet and confer within the courtroom, in the absence of court staff and the undersigned. Thereafter, counsel advised the Court that they had reached agreement on several issues, yet required the Court's assistance to resolve one remaining issue.


The Issues & The Parties' Arguments

Medical Records

The first issue involves the production of Plaintiff's medical records. The request calls for records pertaining to "any physical and/or non-physical injuries or conditions, including emotional distress, humiliation, embarrassment and/or mental anguish" from July 2007 to the present.

Plaintiff contends that because she had provided verified discovery responses, under penalty of perjury, that she did not seek any treatment from any health provider related to her claims, there are no records and that her discovery responses "amount to nothing more than the customary pain and suffering" claims or "garden-variety" emotional distress claims. Therefore, "it is not reasonably likely that the records in Dr. Borgsdat's office are directly relevant to the condition she placed in issue." Plaintiff asserts that mere speculation by Defendant cannot overcome her right to privacy.

Initially, Defendant notes that Plaintiff has "objected to every subpoena served by SkyWest in this matter on the grounds that SkyWest was impermissibly invading her privacy." (Emphasis in original.) With particular regard to these records, Defendant contends the request is directly relevant to Plaintiff's claim for personal injury damages. Plaintiff has neither withdrawn nor modified this claim in a way that would preclude discovery. Because Plaintiff identified Dr. Borgsdat at Peachwood Medical Group as a person with discoverable information, and because she is asserting a personal injury claim, she cannot claim the physician-patient privilege. Despite Plaintiff's assertion that she does not intend to introduce evidence of medical expenses incurred at trial, SkyWest is not assured that she will not testify at trial that she suffered such injuries. These facts, argues Defendant, are relevant to causation, and its need for the information is manifest. Finally, Defendant contends the subpoena was narrowly drafted, seeking only records within a reasonable time frame, and noting that Plaintiff's privacy would be protected by a protective order including an attorney's eyes only provision.

Previous Employers

Plaintiff's previous employers include Starbucks and Behavioral Intervention Associates. She worked for the former from May 2005 to July 2007, and for the latter in February and March 2006. Defendant's subpoenas sought records with "dates of employment, earnings, profits, benefits, business income, employment applications, submitted resumes, interview notes, salary, payroll, attendance, timecards, requests for accommodation or time off, and dates and hours worked from the first date of her employment to and including the present."

Plaintiff contends this information is not relevant because she did not attend St. James Anglican church at the time she worked for either previous employer. Additionally, she claims the request is over broad because it is not limited to "requests for accommodation or time-off due to her religious beliefs." More particularly, Plaintiff contends she began working for SkyWest in August 2007 and began requesting religious accommodation in February 2009. She began attending St. James Anglican in April 2008. Therefore, Plaintiff argues it is not ...

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