Weapon of Choice: The CPRA Option
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In
a previous article, I covered a case holding that evidence of
harassment by the Defendant of other persons before the employment and
harassment alleged by the current employee is nonetheless admissible.
This type of evidence is loosely described as "me too" evidence, and is
offered to show a pattern of harassing behavior. See Pantoja v. Anton (Aug. 9, 2011) 2011 DJDAR 11962.
The
first hurdle for the employee rights attorney is obtaining the
information during discovery. Only then does the question of
admissibility at trial arise.
In
the usual practice of employment law, the way to obtain employment
records of a non-party employee is by a subpoena. This procedure
includes a notice to the third party employee that his personnel records
are being sought. A subpoena for employment records requires this
prior notice to allow the third party employee to object to the
subpoena. A timely objection places the burden upon the party issuing
the subpoena to show the court good cause for the production.
But
these "prior notice" and "burden of showing cause" provisions are not
part of the the California Public Records Act (CPRA) (Gov. Code, § 6250
et seq.) Tactically, the Employee Rights Attorney may want to use the
CPRA to get California government employee documents without the usual
inevitable privacy objections by the defense attorney [or third party
employee] in response to a subpoena.
The
information is often relevant to the issue of how the government agency
has responded to other discrimination or harassment complaints, whether
the individual employee accused of harassment has been accused
previously, investigated previously, or found guilty previously. The
information may also reveal that the Government Agency has taken a lax
approach to complaints that had substantial merit. The Plaintiff's
theory will be that the failure to take earlier corrective action
allowed the perpetrator to harass others, including the current
complainant.
Prior
harassment complaints against a government employee recently have bee
held to be of substantial public interest requiring an agency to
disclose its investigation report and letter of reprimand under the
CPRA. The policy behind the CPRA was deemed to have outweighed the
employee's privacy interest in his records. See Ari Marken vs Santa Monica-Malibu Unified School District,
No. B231787 (Cal.App. Dist.2 01/24/2012). In Marken, a parent sought
the personnel records of a school District teacher accused some years
earlier of sexually harassing a 13 year old female student. The
District, although not required, gave the teacher prior notice of intent
to produce the records. The teacher sought to prevent the disclosure,
and was rebuffed by both the trial court and the Court of Appeal. The
Court noted that the government employer is required to comply with
disclosure in compliance with short time limits of the CPRA.
My
overall reading of the CPRA is that it is designed to facilitate and
favor disclosure of public records, including "private" personnel
records if relevant to a discrimination or harassment issue. It should
be the employee attorney's weapon of choice in obtaining personnel
records involving public employees. Stipulations by counsel to redact
or limit the scope of disclosure may advance the essential purpose of
quickly obtaining an investigative report that will establish the
employer's knowledge of the offending employee's continuing misconduct.
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