Thomas v. Marshall Pub. Sch.

690 F.Supp.3d 941

Mary Kay THOMAS, Plaintiff, v. MARSHALL PUBLIC SCHOOLS et al., Defendants.

Case No. 21-cv-2581 (PJS/DJF)

United States District Court, D. Minnesota

Signed September 6, 2023

David E. Schlesinger, Laura Farley, Riley Palmer, Nichols Kaster PLLP, Minneapolis, MN, Matthew A. Frank, Premo Frank PLLC, Minneapolis, MN, for Plaintiff.

Frank Edward Langan, Timothy A. Sullivan, Ratwik Roszak & Maloney, P.A., Saint Paul, MN, for Defendants.

ORDER

Dulce J. Foster, United States Magistrate Judge

This matter is before the Court on third-party movant Pemberton Law, P.L.L.P.'s ("Pemberton") Motion for Protective Order (ECF No. 43); Defendants' Motion for Protective Order (ECF No. 62); Plaintiff's Motion to Extend Discovery and Motion Deadlines (ECF No. 71); and Plaintiff's Motion to Compel (ECF No. 80). These disputes revolve around Plaintiff's request to depose Pemberton Attorney Joshua Heggem regarding the 2021 Investigation Report ("Report") he prepared on behalf of Defendants regarding Plaintiff's job performance, and Plaintiff's request for documents prepared by Heggem and Pemberton attorney Kristi Hastings. Defendants and Pemberton oppose these requests based on the attorney-client privilege and work product doctrine.

For the reasons given below, the Court will allow Plaintiff to depose Heggem about the investigation, its scope and design, the information collected and reviewed in the investigation, Heggem's findings and conclusions, and the bases for his conclusions. The Court grants the Motions for Protective Order (ECF Nos. 43, 62) to the extent Plaintiff seeks to inquire into Heggem's legal advice regarding whether to conduct the investigation, how to respond to the investigation findings and conclusions, and in all other respects. The Court grants Plaintiff's Motion to Compel (ECF No. 80) in part, requiring Defendants and Pemberton to produce responsive documents and communications with respect to the investigation and Investigation Report. Based on Defendants' subject matter waiver of the privilege, the Court further orders the production of documents reflecting or describing communications with Hastings regarding whether to conduct the investigation, Defendants' decision to put Plaintiff on administrative leave, or the change in her position. Finally, the Court grants Plaintiff's Motion to Extend Discovery and Motion Deadlines (ECF No. 71) in part, by extending the discovery and non-dispositive motions deadlines to allow limited fact discovery as set forth in this Order, including forensic examination of the individual Defendants' personal electronic communications devices.

I. Background

a. Factual Allegations

This litigation arises out of Plaintiff's allegation that she was demoted from her position as principal of Marshall Middle School ("MMS") in retaliation for displaying an LGBTQ Pride Flag in the school cafeteria in 2020. (See ECF No. 35.) Plaintiff was the principal of MMS for 15 years prior to her demotion and alleges that, in her time as principal, she consistently received positive performance reviews without any indication that her job was in danger. (See id. at 9-12.)

In late-December 2019, as part of an inclusion project at MMS, Plaintiff approved the display of an LGBTQ Pride Flag in the school cafeteria to make members of historically marginalized groups feel welcome at MMS. (Id. at 15.) The flag was first displayed on January 2, 2020, and within days, school staff, teachers, students and local clergymen began to express their objections to Plaintiff's decision. (Id. at 16-19.) Plaintiff alleges then-Superintendent Scott Monson and School Board Chairs Jeff Chapman and Jeremy Williams, at the behest of a local clergyman, held a meeting with her on January 9, 2020 to request that she take the Pride Flag down. (Id. at 17-20.) Plaintiff feared reprisal if she did not comply, and ultimately instructed building maintenance to take down all flags in the school, rather than single out the Pride Flag alone. (Id.) Superintendent Monson ultimately withdrew the demand after Plaintiff instructed building staff to take down all flags. (Id.)

Pressure continued to mount against the Pride Flag until March 2020, when the COVID-19 pandemic began, and immediately resurfaced when students returned to in-person learning in November 2020. (See id. at 20-27.) Sometime between January 2020 and the end of 2021, Superintendent Monson left and was replaced by Defendant Jeremy Williams. In 2021, teachers began to raise concerns to Superintendent Williams that Plaintiff was creating a divisive environment at MMS. (Id. at 28-29.) Superintendent Williams approached Plaintiff about these complaints in February 2021. Plaintiff alleges he did not provide her with any examples of how she was creating a divisive environment, other than nodding his head in agreement when Plaintiff asked whether the complaints were coming from people who wanted the Pride Flag to be taken down. (Id. at 28.) Superintendent Williams suggested she should resign or accept reassignment, which Plaintiff refused to do. In early March 2021, Superintendent Williams notified Plaintiff she would be placed on involuntary administrative leave pending an investigation into these workplace allegations, which was to last two to three weeks. (Id.) Williams testified at his deposition that he decided an investigation was necessary to examine "performance concerns" the School Board had about Plaintiff. (ECF No. 50-2 at 2-3.)

Superintendent Williams hired Pemberton to conduct the investigation, which it tasked to Heggem. (See ECF No. 50-1.) Heggem conducted 19 interviews in the course of his investigation, including interviews with school district employees and school board members. According to defense counsel, he likely did not provide any Upjohn warnings to interviewees to inform them that the school districted intended the interviews to be subject to the attorney-client privilege. Although Pemberton is a law firm and Heggem is an attorney, Superintendent Williams did not identify Heggem as counsel for the district in communications with employees and directors being interviewed; instead, he referred to Heggem as an "outside investigator". (See e.g., ECF No. 51 at 107.) All interviewees received Tennessen Notices in advance of their interviewees, however, which requested confidentiality for the purpose of "preserv[ing] the integrity of the investigation." (Id. at 109.)

The investigation ultimately took longer than the initial two- to three-week estimate and continued into May. During that time, Plaintiff signed and filed discrimination charges with the Minnesota Department of Human Rights and the EEOC on April 19, 2021, and on April 23, 2021, a group of citizens sued Marshall Public Schools and Plaintiff. (ECF No. 35 at 30.)

Heggem finished the Investigation Report on May 11, 2021, concluding he could not substantiate most of the allegations against Plaintiff, but finding it more likely than not that she created a negative work environment. (See ECF No. 51 at 18.) Plaintiff received a copy of the Report later that month. (ECF No. 50 ¶ 3.) Plaintiff states she had the impression she would be fired if she did not agree to resign and take a severance payment, but instead the school district demoted her to a "Special Projects" position that it does not intend to make permanent. (ECF No. 35 at 31-33.)

b. Discovery Disclosures

Defendants produced the Report and its accompanying exhibits in discovery and acknowledge without qualification that the decision to demote Plaintiff was predicated directly on the results of the investigation. (See, e.g., ECF No. 64 at 2, "Based upon the findings set forth in Heggem's report, Williams suspended Plaintiff without pay for seven (7) working days, issued her a Notice of Deficiency, and placed Plaintiff on a Performance Improvement Plan. To alleviate the concerns that Heggem identified . . . Williams also reassigned Plaintiff to her current position as "Coordinator of Special Projects". (ECF No. 50-3 at 5-6, interrogatory answer stating "the decision to reassign Plaintiff was the result of the May 11, 2021, Investigative Report"; ECF No. 56 at 3, Williams' deposition testimony stating he "made decisions regarding Mary Kay Thomas's employment in reliance on [the] report").

Defendants have also produced: (1) over 100 emails from Heggem to Defendants regarding the investigation; (2) Superintendent Williams' notes from a meeting with Heggem regarding the nature and scope of the investigation; (3) Superintendent Williams' notes from a meeting with Hastings on February 12, 2021 regarding Plaintiff's position; (4) Superintendent Williams' notes from a March 3, 2021 meeting with Hastings about the investigation; and (5) according to Plaintiff, hundreds of documents related to the Investigation Report. (See ECF Nos. 50 ¶ 6, 53 and 54.) In addition, witnesses have provided deposition testimony about the Heggem March 3, 2021 meeting notes (ECF No. 56 at 6-7) and the Hastings February 12, 2021 meeting notes (id. at 8). Defendants do not argue that any of these disclosures were inadvertent, and upon questioning at the motion hearing, confirmed unequivocally that they do not wish to claw back any of these documents.

c. Procedural History

i. Motion to Compel

On May 9, 2023, Plaintiff moved to compel both Defendants and Pemberton to produce documents she asserts are related to Heggem's investigation and Investigation Report. (ECF No. 80.) Plaintiff served Defendants with the Requests for Production at issue in her Motion to Compel (ECF No. 83-1) on February 8, 2022—more than a year before she filed her Motion to Compel (see ECF No. 80). Defendants served their responses and objections to the Requests for Production on March 9, 2022. They served their privilege log on September 27, 2022, which they replaced with a supplemental log on November 2, 2022 (ECF Nos. 83 ¶ 6; 83-3). Plaintiff served a third-party Subpoena for Document Production on...