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Porter v. Pinkerton Government Services, Inc.

United States District Court, District of Columbia

May 23, 2014

ANGEL PORTER, Plaintiff,
v.
PINKERTON GOVERNMENT SERVICES, INC., Defendant.

MEMORANDUM OPINION

Gladys Kessler, Judge

Plaintiff Angel Porter ("Plaintiff") brings this case against Pinkerton Government Services, Inc. ("Defendant") for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, the Civil Rights Act of 1866, 42 U.S.C. § 1981, and her common law right to privacy.

Pending before the Court are Plaintiff's Motion to Quash Defendant's Subpoena Directed to Ivy Plastic Surgery Associates [Dkt. No. 17] and Plaintiff's Motion to Quash or Modify Defendant's Subpoena for Testimony of an Employee of Ivy Plastic Surgery Associates [Dkt. No. 18]. Upon consideration of the Motions, Oppositions, and Replies, and the entire record herein, and for the reasons stated below, the Motions shall be granted in part and denied in part.

I. BACKGROUND

A. Factual Background[1]

Defendant is a company specializing in security and emergency services for government agencies. FAC ¶ 5. Plaintiff, who is African American, was employed by Defendant as a security guard from 2008 until June 2012. FAC ¶¶ 6-8. During that time, she was assigned to work for TASC, Inc., whose management gave her multiple compliments for the quality of her work and frequent recommendations for a promotion. FAC ¶¶ 8-9. Plaintiff interviewed for a supervisor position with Defendant on at least four occasions, but despite the positive feedback from TASC, Inc., "her strong background in security, and the fact that she was already training people that were going to be her new supervisors, " Plaintiff was not hired. Plaintiff claims she was specifically told by her supervisors that the reason she would not be hired was that they were looking for a "bright face." FAC ¶ 12. The positions were filled instead by three white women and an Asian man. FAC ¶¶ 10-12.

Plaintiff also alleges that, in December 2011, she received approval from Defendant's Human Resources Department for medical leave to have a surgical procedure on her stomach. The surgery was to be performed by Ivy Plastic Surgery Associates ("Ivy Associates"). Two days before the surgery, however, Plaintiff's Site Manager, Ms. Persell, and Branch Manager, Mr. Paczek, began to harass her about taking the time off from work, even though her request for medical leave had already been approved by the Human Resources Department. FAC ¶¶ 13, 15. Mr. Paczek allegedly took it upon himself to contact Ivy Associates in an attempt to obtain information about the nature of her surgery, and he and Ms. Persell subsequently told Plaintiff's co-workers that she was having a "tummy tuck, " causing her humiliation and embarrassment. FAC ¶¶ 14, 16-17, 20. This was not, according to Plaintiff, the first time Mr. Paczek investigated her personal affairs. He also contacted her son's doctor on several prior occasions when she missed work as a result of her son's asthma. FAC ¶ 19.

On December 27, 2011, Plaintiff filed a formal complaint of harassment and invasion of privacy against Mr. Paczek and Ms. Persell. Thereafter, Mr. Paczek and Ms. Persell ceased verbally communicating with her and began looking for reasons to fault and reprimand her, including "by calling other co-workers to ask about things like Plaintiff's uniform, work, etc." FAC ¶ 22.

Plaintiff asserts that "[a]fter dealing with this hostile environment for quite some time and definitively being told in 2012 that she would not be promoted due to her race, " she "was forced to resign on or about June 1, 2012." FAC ¶ 26.

B. PROCEDURAL BACKGROUND

On July 27, 2013, after exhausting her administrative remedies with the EEOC, Plaintiff filed this case. On December 2, 2013, she filed her FAC [Dkt. No. 11], which asserts claims for invasion of privacy, disparate treatment, hostile work environment, retaliation, and discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981. On December 16, 2013, Defendant filed its Answer, generally denying Plaintiff's allegations and asserting, as an affirmative defense, a qualified privilege to "investigate the circumstances surrounding Plaintiff's December 2011" request for medical leave and "to disclose to its management staff and its employees any factual information related to Plaintiff s effort to take time off work in December 2011." See generally Answer [Dkt. No. 11]; id. at Tenth and Eleventh Affirmative Defenses.

On February 10, 2014, Defendant served two subpoenas: one on Ivy Associates seeking production of Plaintiff's medical records and the other commanding Ivy Associates Patient Coordinator Adrienne Harvill to testify at a deposition. On April 1, 2014, Plaintiff, filed her Motion to Quash Defendant's Subpoena Directed to Ivy Plastic Surgery Associates ("Ivy Mot.") [Dkt. No. 17] and her Motion to Quash or Modify Defendant's Subpoena for Testimony of an Employee of Ivy Plastic Surgery Associates ("Harvill Mot.") [Dkt. No. 18], On April 14, 2014, Defendant filed its Opposition to the Ivy Motion ("Opp'n to Ivy Mot.") [Dkt. No. 20] and its Opposition to the Harvill Motion ("Opp'n to Harvill Mot.") [Dkt. No. 19]. On April 21, Plaintiff filed her Reply in further support of the Ivy Motion ("Ivy Reply") [Dkt. No. 21] and her Reply in further support of the Harvill Motion ("Harvill Reply") [Dkt. No. 22].

II. LEGAL STANDARD

"[I]t is settled that a subpoena is limited in scope by. Rule 2 6(b)(1) of the Federal Rules of Civil Procedure." Coleman v. D.C., 275 F.R.D. 33, 36 (D.D.C. 2011) (citations omitted). Under Rule 26(b)(1), "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed.R.Evid. 401. This definition is broadly construed for purposes of discovery. Food Lion v. United Food & Commercial Workers Int'1 Union, 103 F.3d 1007, 1012 (D.C. Cir. 1997).

"Rule 45 also supplies the standards under which district courts assess . . . objections to a subpoena." Watts v. S.E.C., 482 F.3d 501, 508 (D.C. Cir. 2007). "The rule requires that district courts quash subpoenas that call for privileged matter or would cause an undue burden." Id.; see also Fed. R. Civ. P.45(d) (3) (A) (iii). Thus, as our Court of Appeals has held:

if the documents under subpoena are relevant to the subject matter of the proceeding for which their production is sought, the subpoena should be enforced on a showing of good cause unless the documents are privileged or the subpoena is unreasonable, oppressive, annoying, or embarrassing. And if the District Court believes the subpoena has a meritorious basis but should not be enforced as drafted, ... it has authority under Rule 30(b) to modify the subpoena and impose such conditions on enforcement as justice may require.

Freeman v. Seliqson, 405 F.2d i326, 1334-35 ...


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