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.
My focus is communicating the heart and core of a case to obtain the maximum recovery for my clients in wrongful termination actions. Issues I argue include discrimination, whistleblower retaliation, defamation, overtime and wage/break violations, privacy invasions, and sundry wrongs committed in the work place.