Court Grants Motion to Compel Discovery Regarding Other Instances of Sexual Harassment

In Berry v. Town of Front Royal, Virginia, 21-cv-00001, 2021 WL 4895204 (W.D. Va. Oct. 20, 2021) – a sexual harassment and retaliation case involving allegations of unwanted touching and inappropriate remarks – the court granted plaintiff’s motion to compel discovery.

At issue were two document requests:

27. All documents submitted by Defendant to, or received by Defendant from, any governmental entity, including without limitation the EEOC and/or the Department of Labor, in connection with claims of discrimination by any employee or applicant to become an employee of Defendant based on sex, including sexual harassment, or retaliation from January 1, 2016 through the date on which you respond to this request.

28. To the extent not produced in response to any other request, any and all documents reflecting or referring to each and every charge, lawsuit, or administrative complaint of sex discrimination, including sexual harassment, or retaliation that has been made or filed within the past five years by any current or former employee of Defendant.

Defendant opposed the discovery on “relevance” grounds, asserting thatĀ theĀ other reported sexual harassment charge “involved a different department, a different supervisor, and entirely distinct factual circumstances.”

In determining that the requested discovery was “relevant” for discovery purposes, the court explained:

Berry alleges a failure by Defendant to enforce its sexual harassment policies and properly investigate her claims of sexual harassment. While Defendant asserts that the Charge is the sole incident covered by the Requests, Plaintiff points to Bush’s deposition testimony as raising reasonable questions about that assertion. According to Berry, Bush testified that she investigated a dozen allegations of harassment, although the dates of the allegations were not provided. Information about other claims may provide relevant insight into Defendant’s enforcement of its sexual harassment policy and handling of investigations, depending on the particulars of those other claims.

Additionally, similar incidents of discrimination and harassment may demonstrate discriminatory intent, a necessary element of a Title VII claim. Information about an employer’s discriminatory treatment of other employees may be relevant to the issue of the employer’s discriminatory intent in the plaintiff’s case.

Accordingly, the information sought in the Requests is relevant to an employer’s intent, at least for purposes of discovery. Information about previous charges of discrimination and retaliation and the handling of those claims may shed light on whether Defendant’s alleged actions were taken for discriminatory and retaliatory purposes or for legitimate ones. See Flanagan v. Travelers Ins. Co., 111 F.R.D. 42, 47 (W.D.N.Y. 1986) (A plaintiff who must shoulder the burden of proving that the reasons given for his discharge are pretextual should not normally be denied the information necessary to establish that claim.)).

[Citations and internal quotation marks omitted; cleaned up.]

Based on this, the court held that defendant failed to carry its burden, and that the requests at issue “are relevant to discerning Defendant’s enforcement of its sexual harassment policy, its handling of investigations into alleged sexual harassment, and whether it acted with discriminatory or retaliatory intent.”

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