United States Equal Emp't Opportunity Comm'n v. The George Wash. Univ.

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UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. THE GEORGE WASHINGTON UNIVERSITY, Defendant.

No. 17-cv-1978 (CKK/GMH)

United States District Court, District of Columbia

September 1, 2022

MEMORANDUM OPINION AND ORDER

G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

This discovery dispute-the fifth referred to the undersigned in this gender discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Equal Pay Act, 29 U.S.C. § 206(d)-concerns claims of attorney client privilege and work product protection asserted by Defendant The George Washington University (“GW” or the “University”) over documents created in connection with its internal investigation of a discrimination complaint filed by Sara Williams, nee Mutalib, with the University's Equal Employment Opportunity Office. The Equal Employment Opportunity Commission (the “EEOC” or the “Commission”), which sues the University on behalf of Williams, seeks an order compelling the University to produce all withheld documents related to that investigation. The Commission contends that, contrary to the University's assertions, those documents did not seek contain, or reflect legal advice, nor were they created in anticipation of litigation at the direction of counsel. The Commission further argues that, even if those documents were covered by work product protection or the attorney-client privilege, the University has waived that privilege either by asserting a so-called Kolstad defense or by failing to claim or to support its claims of privilege on its privilege log. Finally, the agency asserts that it has shown substantial need for the documents sufficient to overcome any work product protection. After review of the extensive briefing on these issues,^[1] the Court finds that the Commission's motion to compel should be denied.

I. BACKGROUND

Prior opinions have outlined many of the relevant allegations in this action. Put simply, Williams was employed from mid-2014 through 2016 as Executive Assistant to the University's former Athletic Director at a salary of approximately $40,000 per year. U.S. EEOC v. George Washington Univ. No. 17-cv-1978, 2020 WL 3489478, at *1 (D.D.C. June 26, 2020) [hereinafter GW II]. The EEOC alleges that, in 2015, the Athletic Director “began to give preferential treatment to a male employee”-Michael Aresco-who was promoted in January 2016 to the position of “‘Special Assistant' in the Athletics Department to carry out work substantially equal” to that of Williams, but at a salary of over $77,000 per year. U.S. EEOC v. George Washington Univ., No. 17-cv-1978, 2021 WL 7907064, at *1 (D.D.C. Sept. 23, 2021) [hereinafter GW IV]. In March 2016, Williams filed an internal grievance complaining of gender discrimination with the University's Equal Employment Opportunity Office, which is tasked with reviewing, investigating, and attempting to remediate such complaints. Id. at *2. The investigation was initially led by Vickie Fair and Danielle Reich, personnel in the Equal Employment Opportunity Office. Id. In July 2016, the University hired the law firm Saul Ewing Arnstein & Lehr LLP (“Saul Ewing”) to “take over” the internal investigation and draft a Confidential Informal Grievance Report (the “Saul Ewing Report”). ECF No. 93 at 9. In January 2017, the University reported to Williams that her claim of discrimination had been investigated and “could not be substantiated.” ECF No. 91-5 at 2.

Meanwhile, in October 2016, Williams filed a charge of discrimination with the EEOC. ECF No. 10-4 at 2. In April 2017, the Commission issued a Letter of Determination finding reasonable cause to believe that the University had violated Title VII and the Equal Pay Act. ECF No. 10-3. Conciliation failed and the Commission filed this federal court action in September 2017. See U.S. EEOC v. George Washington Univ., No. 17-1978, 2019 WL 2028398, at *2 (D.D.C. May 8, 2019) [hereinafter GW I]. The University's motion to dismiss the Complaint was unsuccessful, see id. at *8, and it subsequently filed an Answer that included, as a defense, that Plaintiff's “claims for punitive damages are barred because the University engaged in good faith efforts to comply with Title VII,” ECF No. 25 at 7. That is sometimes known as a “Kolstad defense” after Kolstad v. American Dental Association, in which the Supreme Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's ‘good-faith efforts to comply with Title VII.'” 527 U.S. 526, 545 (1999) (quoting Kolstad v. Am. Dental Ass'n, 139 F.3d 958, 974 (D.C. Cir. 1998) (Tatel, J., dissenting)).

A rocky discovery period commenced. See GW II, 2020 WL 3489478 (resolving a dispute-developed over the course of approximately four months in two letter briefs, four regular briefs, and a hearing-over four of the Commission's requests for production of documents); U.S. EEOC v. George Washington, Univ., 502 F.Supp.3d 62 (D.D.C. 2020) [hereinafter GW III] (finding that counsel for the EEOC had violated Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure by reviewing documents after the University informed her that they were privileged and rejecting the Commission's claims that privilege had been waived); GW IV, 2021 WL 7907064 (addressing, but not resolving, the argument that the University had waived privilege over documents related to its internal investigation of Williams' grievance by asserting a Kolstad defense). An outline of the history of this current dispute will be useful.

During discovery, the Commission propounded an Interrogatory asking for a “full statement of the facts supporting [the University's] contention” that punitive damages are unavailable because it “engaged in good-faith efforts to comply with Title VII.” ECF No. 78-4 at 2. In response, the University stated the following: that it values a diverse environment and is an equal opportunity employer that maintains strong human resources policies and procedures prohibiting discrimination, including an Equal Employment Opportunity Office; that the compensation of Williams and Aresco was determined, in accordance with University policies, by the Compensation Department, which reviews the employee's merit, comparable job roles, and similarly situated individuals, and sets pay ranges; that Aresco was qualified for the Special Assistant job; and that, had Williams applied for the job (which she did not), her qualifications and experience, as well as her performance in the Executive Assistant position, would have weighed against hiring her. ECF No. 78-4 at 3-5. In its first request for production of documents, the EEOC requested that the University produce all documents related to the University's internal investigation of Williams' grievance. See GW IV, 2021 WL 7907064, at *2; see also ECF No. 805 at 13. The University objected on the basis of attorney-client privilege and work product protection (among other bases) and, according to an “Amended Supplemental Privilege Log” produced on December 30, 2020, see ECF No. 80-4, “withheld 80 unique documents ‘regarding' the ‘[i]nvestigation re S. [Williams] grievance' under either attorney-client privilege, work product protection, or both,” GW IV, 2021 WL 7907064, at *2 (alterations in original).

In early April 2021, the parties informed Judge Kollar-Kotelly of a number of discovery disputes, among them the Commission's complaint that the University had asserted “that all documents related to its investigation of [Williams'] complaint, except for the grievance form[,] are privileged.” Joint Statement Regarding Discovery Disputes at 2 (on file with the Chambers of the undersigned). The Commission argued that the University's interposition of “a ‘good faith' (Kolstad) defense” put its “subjective intention” at issue and thus waived protection over those documents. Id. The University retorted that the internal investigation was privileged because it “was conducted at the request and direction of University counsel-first the University's Office of General Counsel, and then outside counsel at Saul Ewing”-and that it “did not somehow waive privilege by pleading the Kolstad defense.” Id. Judge Kollar-Kotelly ordered the parties to submit simultaneous briefing on that issue in late April 2021.^[2] See ECF No. 76. The Commission's resulting brief again argued that the University's assertion of the Kolstad defense worked an implied waiver of protection over the documents concerning the internal investigation because they were inextricably intertwined with that defense. ECF No. 79-4 at 16-19. In addition, the Commission contended that the University's privilege log was deficient by (1) failing to log any documents related to the internal investigation created between March 10, 2016, when Plaintiff filed her internal grievance, and July 29, 2016; and (2) insufficiently supporting the University's claims to either attorney-client privilege or work product protection. Id. at 9-11. The Commission also asserted that the University could not show communications relating to the internal investigation, which was conducted by personnel in the University's Equal Employment Opportunity Office, were made “‘because of' any anticipated litigation” as required for work product protection or that they “were not made ‘but for' the purpose of seeking legal advice” as required for attorney-client privilege.^[3] Id. at 14-15 (emphasis added). Finally, the Commission argued that it had established a sufficient need to overcome any work product protection that might attach to the internal investigation documents. Id. at 15-16. For its part, the University...