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EQUAL OPPORTUNITY EMPLOYMENT COMM. v. ROSE CASUAL DINING

United States District Court, E.D. Pennsylvania


January 23, 2004.

EQUAL OPPORTUNITY EMPLOYMENT COMMISSION
v.
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.

Background*fn1

  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 Page 2 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. ¶ 13.)

  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 Page 3 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 Page 4 documents exist.*fn2

 Witness Statements

  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 Page 5 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 Plaintiffs Page 6 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 Page 7 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 125.)

  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 Rose Page 8 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. Page 9

  ORDER


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