United States District Court, E.D. Pennsylvania
January 23, 2004.
EQUAL OPPORTUNITY EMPLOYMENT COMMISSION
ROSE CASUAL DINING, L.P., d/b/a APPLEBEE'S NEIGHBORHOOD GRILL & BAR; DANIELLE RIELLI v. ROSE CASUAL DINING, L.P., JAMIE RUCKLE, SUSAN PURCELL, STAGEY BARTHOLOMEW, DEXTER VOLPE, and BRIAN MARKS
The opinion of the court was delivered by: RICHARD SURRICK, District Judge
MEMORANDUM & ORDER
Presently before the Court is the Equal Employment Opportunity
Commission's (the "EEOC") and Danielle Rielli's Motion to Compel Answers
to Interrogatories and Document Requests. For the following reasons
Plaintiffs' Motion will be granted in part and denied in part.
On or about October 25, 2001, Plaintiff Danielle Rielli was hired as a
manager-trainee by Defendant Rose Casual Dining, L.P. ("Rose Causal"), at
their Bloomsburg, Pennsylvania facility. (Doc. No. 12 ¶ 10.) Rielli
alleges that almost immediately after she was hired, she was subjected to
a sexually hostile work environment by the management and other employees
of Rose Casual. (Id. ¶ 11.) When Rielli complained to the
assistant general manager, Susan Purcell, about the
sexually hostile work environment at the Bloomsburg facility, she
responded that Rielli would have to deal with it. (Id. ¶
12.) When Rielli complained to the general manager, Stacey Bartholomew,
she laughed and questioned Rielli's sexual orientation. (Id.
Determined to become a restaurant manager, Rielli continued to endure
the sexual harassment until she finished the kitchen training and
transferred to Rose Casual's Audubon facility to begin "front of the
house" training. (Id. ¶ 15.) On or about November 23, 2001,
at the Audubon orientation meeting, Rielli explained the difficulties she
encountered at the Bloomsburg facility and that she did not feel fully
prepared to be a restaurant manager. (Id. ¶ 16.) Rielli
promised the general manager, Scott Larsen, that she would do anything to
make up for the deficiencies in her training in Bloomsburg and was
assured by Larsen that she would be successful. (Id. ¶ 17.)
On November 27, 2001, Rielli met with the manager and training
coordinator, Dexter Volpe, and informed him of the sexual harassment that
she endured at the Bloomsburg facility. (Id. ¶ 18.) Volpe
expressed concern and told Rielli that he was going to refer the matter
to the human resources department and make them aware of her allegations.
(Id. ¶ 19.) On November 29, 2001, Rielli met with two human
resources employees, Paul Rockelmann and Paul Trzaska, to discuss the
sexual harassment Rielli endured at the Bloomsburg facility.
(Id. ¶ 20.) Trzaska told her that he was aware of complaints
at the Bloomsburg facility and that she was not the first one to make
such a complaint. (Id.)
On December 3, 2001, Rielli attended Rose Casual's holiday party.
(Id. ¶ 23.) Upon entering the party, the Bloomsburg manager,
Jamie Ruckle, immediately approached Rielli and grabbed her posterior
while commenting on how good she looked. Ruckle then removed Rielli's
name tag and dropped it down her cleavage. Ruckle continued to pursue
Rielli throughout the
night, grabbing her and making repeated sexual comments towards
her. (Id.) On December 4, 2001, Rielli returned to work and
again complained to Volpe about Ruckle's sexually harassing behavior.
(Id. ¶ 25.) Volpe commented that Ruckle "was doing that to
everyone," not just Rielli. (Id. ¶ 26.) Less than three
hours later, Rielli was informed that she was being terminated because
she did not fit in. (Id. ¶ 27-29.)
Rielli alleges that Defendants subjected her to a sexually hostile work
environment and retaliated against her when she complained about the
sexual harassment. She seeks relief under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the
Pennsylvania Human Relations Act, 43 PA. CONS. STAT. § 951, et seq.
("PHRA"), and raises other state law claims.
Plaintiffs' Motion to Compel
Plaintiffs move to compel the production of two groups of documents.
First, Plaintiffs request certain witness statements that were written at
the request of Defendants' counsel, but without assistance from or
communication with counsel. The witness statements were allegedly
produced in connection with Defendants' investigation of Rielli's claims
of sexual harassment. Second, Plaintiffs seek the Manager in Training
("MIT") workbooks, and the General Manager Weekly Reports ("GM Reports")
of manager-trainees who were similarly situated with Rielli. Defendants
maintain that Rielli was terminated because she was behind in her MIT
workbook. Plaintiffs wish to examine MIT workbooks from other similarly
situated employees to show that Defendants' proffered reason for
terminating Rielli was pretextual. Plaintiffs also wish to examine the GM
Reports, which were weekly evaluations used in connection with the
manager training program. Defendants have refused to produce these
documents and/or denied that such
Plaintiffs claim that Defendants conducted an investigation after
Rielli complained about sexual harassment at the Bloomsburg facility in
late November, 2001. Defendants admit that they investigated Rielli's
claims prior to her termination, having affirmatively pled that they
"properly investigated the allegations made by" Rielli, (Doc. No. 14,
Tenth Affirmative Defense), "took immediate and effective remedial action
upon notice of discriminatory conduct against" Rielli (Id.
Fourteenth Affirmative Defense), and "exercised reasonable care to
prevent and promptly correct any alleged harassing or discriminatory
behavior" (Id. Sixteenth Affirmative Defense). Accordingly,
Plaintiffs seek any witness statements generated during this
investigation. In response, Defendants claim that the witness statements
Plaintiffs seek were not generated during the investigation prior to
Rielli's termination, but rather during a second investigation commenced
after Rielli was terminated. This second investigation, which was led by
Rose Casual's outside counsel, began after Rose Casual received a letter
from Rielli's attorney on December 10, 2001, threatening it with
litigation. Defendants claim that any witness statements generated during
this second investigation are protected from discovery by the
attorney-client privilege and the work-product doctrine.
With respect to witness statements that were generated after Rielli was
fired and at the
direction of counsel in preparation for litigation, we agree that
such statements are protected from discovery by the work-product
doctrine.*fn3 See FED. R. CIV. P. 26(b)(3). The purpose of the
work-product doctrine is to "promote  the adversary system directly by
protecting the confidentiality of papers prepared by or on behalf of
attorneys in anticipation of litigation." Westinghouse v. Republic of
the Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991). "The work
product doctrine found in Fed.R. CIV. P 26(b)(3) is somewhat broader
than the attorney-client privilege and extends to documents prepared by
either the client, his attorney or another representative." Advanced
Tech. Assoc., Inc. v. Herley Indus., Inc., C.A. No. 96-0132, 1996 WL
711018, at *6 (E.D. Pa. Dec. 5, 1996). Witness statements prepared at the
direction of counsel in anticipation of litigation, such as the documents
Plaintiffs seek, are classic examples of attorney work-product, and are
immune from discovery absent a showing of substantial need by the party
seeking such documents.
Plaintiffs do not dispute that the witness statements they seek are
potentially attorney work-product. They argue, however, that Rose Casual
waived the protection of the work-product doctrine by placing the
reasonableness of its investigation at issue in this litigation.*fn4
cite Brownell v. Roadway Package Sys., Inc., 185 F.R.D. 19
(N.D.N.Y. 1999), wherein a Title VII plaintiff moved to compel witness
statements generated during an investigation by the defendant employer of
the plaintiffs claims of sexual harassment. In Brownell, the
employer asserted the adequacy of its investigation as an affirmative
defense to the plaintiffs claims. As in this case, the employer claimed
that it had conducted two separate investigations and that witness
statements generated during the investigation led by its outside counsel
as opposed to its human resources department were protected by the
work-product doctrine. The court disagreed, finding that the company had
conducted only one investigation and had waived the protection of the
work-product doctrine by placing the adequacy of that investigation "in
issue." Brownell, 185 F.R.D. at 25-26.
While we agree with the result reached in Brownell, we think
that case is distinguishable. In Brownell, the outside counsel
for the company began investigating the plaintiffs allegations of sexual
harassment before the plaintiff was terminated. Thus, the investigation
conducted by the company's outside counsel overlapped the company's
internal investigation. Furthermore, the court pointed to several
statements by the outside counsel and company employees that indicated
that the company was conducting a single investigation. By asserting the
adequacy of that investigation as an affirmative defense, the company
waived the protections of the work-product doctrine.
In this case we conclude that Rose Casual conducted two separate
investigations, one that began prior to Rielli's termination, and a
second that began when Rose Casual received a letter from Rielli's
attorney threatening it with litigation. We reach this conclusion for
several reasons. First, Rose Casual's outside counsel began investigating
Rielli's allegations only after Rose
Casual received the letter from Rielli's attorney and after Rielli
had been terminated. When Rose Casual's human resource director
Rockelmann was asked whether or not any witness statements were generated
during the company's internal investigation, he responded that he did not
believe witness statements were taken "until there was an investigation
later on with the while our attorneys were involved after we got
the letter." (Rockelmann Dep. at 125.) On the other hand, the company's
internal investigation began when Rockelmann met with Rielli on November
29, 2001, to discuss her allegations. (Id. at 110.) After that
meeting Rockelmann asked Sharon Baldwick to do an investigation.
(Id. at 125.) When Baldwick finished her investigation, she
reported back to Rockelmann. (Id. at 126.) Again, however, no
witness statements were generated during Baldwick's investigation.
Witness statements were generated only after Rose Casual's outside
counsel became involved and after Rielli was terminated. (Id. at
It is apparent that Rose Casual has raised the reasonableness of its
internal investigation as an affirmative defense to Plaintiffs
allegations. Therefore, Plaintiff is entitled to any witness statements
or other documents related to the internal investigation. As best we can
determine from the record, this internal investigation ended when
Baldwick reported back to Rockelemann and generated no witness
statements. A second investigation began when Rielli's attorney sent a
letter to Rose Casual threatening it with litigation. This second
investigation was led by Rose Casual's outside counsel and generated
witness statements prepared in anticipation of litigation. These
statements are protected from discovery by the work-product doctrine.
Accordingly, Plaintiffs' motion to compel the production of these witness
statements must be denied.
MIT Workbooks/GM Reports
Plaintiffs want to examine the MIT workbooks and GM Reports to evaluate
Casual's claim that Rielli was terminated for reasons related to
her job performance. The MIT workbooks and GM Reports may show how other
similarly situated manager trainees were performing, and may ultimately
demonstrate that Rose Casual's proffered reason for terminating Rielli
was pretextual. If Rielli can show that the reasons Rose Casual proffered
for terminating her were pretextual, then the jury may infer that Rose
Casual intentionally discriminated against her. See Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1066 (3d Cir. 1996).
Such evidence is clearly relevant and therefore discoverable. See
Miles v. The Boeing Co., 154 F.R.D. 117, 120 (E.D. Pa. 1994).
Accordingly, Defendants must produce the requested MIT workbooks and GM
Reports in their possession, custody, or control.
An appropriate order follows.