Spanel v. Cent. Cmty. Coll.

MEMORANDUM AND ORDER

Cheryl R. Zwart United States Magistrate Judge

Plaintiff has filed a motion for leave to file a motion to compel out of time, along with her motion to compel. (Filing No. 126). The motion argues Plaintiff is entitled to discovery regarding the legal advice provided and investigative facts collected by Central Community College's (“CCC”) counsel when assisting CCC in responding to Plaintiff's first EEOC charge and the allegations in this lawsuit. Plaintiff states the Good Faith and Faragher-Ellerth defenses within CCC's Answer to the Third Amended Complaint, along with CCC's statement of facts in its summary judgment briefing, impliedly waive any privilege regarding counsel's investigation and advice provided to CCC. (Filing No. 126, at CM/ECF p. 4). For the reasons discussed below, the motion will be denied.

FACTUAL STATEMENT

As outlined in the Plaintiff's 62-page Third Amended Complaint, (Filing No. 56), Plaintiff alleges Defendants subjected her to ongoing discrimination, harassment, and retaliation from early 2016 to the date she filed her Third Amended Complaint, August 26, 2020. She filed her EEOC Charge on March 24, 2017,

and this lawsuit was filed on August 10, 2018. In their Answer to the Third Amended Complaint, Defendants allege:

Plaintiff's claims are barred, in whole or in part because Defendants had policies in place prohibiting discrimination, harassment, and other alleged wrongful conduct during Plaintiff's tenure. Defendants distributed and/or made these policies available to Plaintiff, and Plaintiff unreasonably failed to avail herself of the protections of these policies or to otherwise avoid harm

Defendants have made good faith efforts to prevent discrimination in the workplace and cannot be liable for decisions of their agents, if any, or for punitive damages, to the extent the challenged employment decisions were contrary to their good faith efforts to comply with anti-discrimination statutes.

(Filing No. 75, at CM/ECF p. 32, ¶¶ 6-7).

Defendants have now moved for summary judgment. (Filing No. 116). In their statement of undisputed facts, Defendants state:

In March 2017, Plaintiff filed an EEOC charge of discrimination. . . . In response, CCC retained counsel, participated in the EEOC investigation, and attended pre-litigation mediation with Spanel. . . . Plaintiff never supplemented or amended her administrative filing. . . . Plaintiff received her Notice of Right to Sue from the EEOC on March 26, 2018.

(Filing No. 117, at CM/ECF p. 13, ¶ 41).

Defendants' brief argues:

[T]he contention that the CCC Board deliberately ignored and undertook no action in response to Spanel's EEOC charge and civil litigation is untenable. To the contrary, CCC retained counsel, participated in the EEOC investigation, and attended pre-litigation mediation with Spanel. . . . CCC also retained litigation counsel, and it answered Plaintiff's Second and Third Amended Complaints, admitting those facts that were accurate and denying those allegations that were false. CCC has undertaken extensive investigation and discovery throughout the three-year life of this

case, and as demonstrated herein, that discovery and investigation have confirmed that Plaintiff's unsupported claims are meritless, if not outright fabricated.

(Filing No. 117, at CM/ECF p. 46).

Plaintiff argues these two paragraphs alerted her to Defendants' intent to rely on legal advice and investigation results received from their attorneys in asserting a good faith and Faragher-Ellerth affirmative defense.^[1] Plaintiff claims these paragraphs thereby waived Defendants' right to the confidentiality afforded under the attorney-client privilege and work product doctrine. She seeks the right to reopen discovery to learn what defense counsel said and the documents they provided to the defendants after the EEOC charge was filed in March of 2017.

ANALYSIS

The parties...