Ambrose-Frazier v. Herzing Inc., et al, No. 2:2015cv01324 - Document 61 (E.D. La. 2016)
Court Description: ORDER AND REASONS - IT IS ORDERED that Ambrose-Fraziers 55 Motion for Appeal/Review of Magistrate Judges Ruling is GRANTED. IT IS FURTHER ORDERED that the February 24, 2016, 53 order denying Ambrose-Fraziers motion to compel is REVERSED, and Am brose-Fraziers 34 motion to compel the production of Lisa Baiocchis unredacted notes is GRANTED. Herzing is to produce the unredacted documents to Ambrose-Frazier by Friday, March 10, 2016. IT IS FURTHER ORDERED that Herzings 57 motion to expedite consideration of the motion for appeal/review is DENIED AS MOOT. Signed by Judge Susie Morgan. (bwn)
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Ambrose-Frazier v. Herzing Inc., et al Doc. 61 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MYESH IA S. AMBROSE-FRAZIER, Plain tiff CIVIL ACTION VERSU S N O. 15-13 2 4 H ERZIN G IN C., ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is Plaintiff’s Motion for Appeal/ Review of Magistrate J udge’s Ruling on her m otion to com pel production of the notes of Lisa Baiocchi. 1 BACKGROU N D This is a Title VII em ploym ent discrim ination case. Plaintiff Myeshia S. Am broseFrazier (“Am brose-Frazier”) filed this action against Herzing, Inc. and Herzing University, Ltd. (collectively, “Herzing”) on April 23, 20 15. 2 Am brose-Frazier, a black fem ale, alleges she began working for Herzing on Decem ber 6, 20 0 6, “and worked without incident” until J ason Morgan (“Morgan”), a white m ale, becam e Am broseFrazier’s supervisor. 3 The com plaint alleges that Morgan “exhibited strange and alienating behavior toward black fem ale em ployees at Herzing.”4 Soon after becom ing Am brose-Frazier’s supervisor, Morgan announced there would be lay-offs, listing both white and black em ployees for term ination, but ultim ately laid off “m ostly black em ployees.”5 1 R. Doc. 55. R. Doc. 1. 3 R. Doc. 40 at ¶¶ 6, 7. 4 Id. at ¶ 8 . 5 Id. at ¶ 9. 2 1 Dockets.Justia.com Am brose-Frazier alleges she was subject to intentional race discrim ination and “suffered a severe and pervasive hostile work environm ent”6 and was treated differently than other sim ilarly situated non-black em ployees. 7 She alleges that when Am broseFrazier com plained about the “blatant race discrim in ation an d harassm ent[,] . . . she was retaliated against by being written up and term inated.”8 She avers she com plained of the harassm ent and retaliation but Herzing did not take preventive or corrective action. 9 Am brose-Frazier filed this suit alleging claim s of discrim in ation, retaliation, an d harassm ent alleging harassm ent on the basis of her sex and race, in violation of Title VII of the Civil Rights Act 10 and 42 U.S.C. § 1981. She seeks dam ages for loss of wages and earning potential, severe em otional distress, pain and suffering, and great bodily injury, as well as attorney’s fees and costs, interest, and pen alties. 11 On February 3, 20 16, Am brose-Frazier filed a Motion to Com pel and/ or In Cam era Inspection regarding her request for production of “any statem ents in any form obtained from any person that is not privileged under law regarding an y fact pertaining to the injury of plaintiff.”12 In her m otion to com pel, Am brose-Frazier noted, “The docum ents requested are the notes of the investigation into Plaintiff’s claim s of discrim ination.”13 Herzing objected to the request to that extent it sought “attorney-client com m unications and/ or work product created in anticipation of litigation”14 and filed an opposition to Am brose-Frazier’s m otion to com pel on February 11, 20 16. 15 6 Id. at ¶ 11. Id. at ¶ 15. 8 Id. at ¶ 11. 9 Id. at ¶ 14. 10 42 U.S.C. § 20 0 0 e et seq. 11 R. Doc. 40 at ¶ 16. 12 R. Doc. 34 at 1. 13 R. Doc. 34-1 at 2. 14 R. Doc. 34 at 1. 15 R. Doc. 43. 7 2 Herzing provided Am brose-Frazier with certain docum ents, including notes written by Lisa Baiocchi. Baiocchi and Brian Olson, another Herzing em ployee, conducted interviews of Am brose-Frazier and eight other em ployees to in vestigate Am broseFrazier’s allegations of em ploym ent discrim ination. 16 Herzing redacted several lines of Baiocchi’s notes, 17 contending the redacted portions contained her “m ental im pressions and evaluations of the inform ation learned during these interviews [that] were plainly created in anticipation of litigation.”18 Magistrate J udge Knowles held an oral hearing on the m otion to com pel on February 17, 20 16, and subsequently ordered Herzing to produce certain docum ents to the Court for an in cam era inspection. 19 J udge Knowles ultim ately denied Am broseFrazier’s m otion to com pel, finding that the redacted portions of Baiocchi’s interview notes were m ental im pressions protected by the work-product privilege. 20 On February 26, 20 16, Am brose-Frazier filed a m otion for review of J udge Knowles’ order, seekin g an order com pelling production of Biaocchi’s notes. 21 Herzin g filed an opposition on March 2, 20 16. 22 On March 3, 20 16, Herzing filed an ex parte m otion to expedite consideration of Am brose-Frazier’s m otion for review. 23 STAN D ARD OF LAW A m agistrate judge’s non-dispositive order m ay be set aside only if it is clearly erroneous or contrary to law. 24 As other courts in this District have sum m arized: “Under 16 R. Doc. 43 at 5; R. Doc. 43-1. See R. Doc. 43-2 at 9– 13 for the redacted version of Baiocchi’s notes that Herzin g provided to Am broseFrazier. 18 Id. 19 R. Doc. 53 at 1. 20 Id. at 6– 8 . 21 R. Doc. 55. 22 R. Doc. 56. 23 R. Doc. 57. 24 F ED . R. CIV. P. 72(a); Moore v. Ford Motor Co., 755 F.3d 80 2, 80 6 (5th Cir. 20 14). 17 3 this standard, factual findings are reviewed for clear error, which is present when the reviewing court upon exam in ation of the entire eviden ce is left with the definite and firm conviction that a m istake has been com m itted. Conclusions of law should be overturned when the m agistrate fails to apply or m isapplies relevant statutes, case law, or rules of procedure. For issues that are com m itted by law to a judge’s discretion, such as the resolution of discovery disputes, the m agistrate's rulings are reviewed for abuse of discretion.”25 D ISCU SSION J udge Knowles found, and Herzing m aintains, 26 that the redacted portions of Baiocchi’s notes are protected by the work-product doctrine. 27 The work-product doctrine protects from disclosure m aterials prepared by or for an attorney in anticipation of litigation, 28 including the attorney’s research, analysis of legal theories, and m ental im pressions. 29 In the Fifth Circuit, “the privilege can apply where litigation is not im m inent, ‘as long as the prim ary m otivating purpose behind the creation of the docum ent was to aid in possible future litigation.’”30 “Factors that courts rely on to determ ine the prim ary m otivation for the creation of a docum ent include the retention of counsel and counsel’s involvem ent in the generation of the docum ent and 25 Energy Intelligence Grp., Inc. v. Canal Barge Co., No. 12-210 7, 20 14 WL 20 1698, at *1 (E.D. La. J an . 17, 20 14) (citations om itted). See also Territa v. Oliver, No. 11-1830 , 20 13 WL 6490 338, at *1 (E.D. La. Dec. 10 , 20 13); Kiln Underw riting Ltd. v. Jesuit High Sch. of N ew Orleans, No. 0 6-4350 , 20 0 8 WL 4724390 , at *1 (E.D. La. Oct. 24, 20 0 8); Bolding v. C.I.R., 117 F.3d 270 , 273 (5th Cir. 1997). 26 R. Doc. 56 at 6– 8. See also R. Doc 43 at 2– 8 . 27 R. Doc. 53 at 7. 28 See F ED . R. CIV. P. 26(b)(3). See also Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991); S. Scrap Material Co. v. Flem ing, No. 0 1-2554, 20 0 3 WL 21474516, at *5 (E.D. La. J un e 18, 20 0 3); Hickm an v. Tay lor, 329 U.S. 495 (1947). 29 Dunn, 927 F.2d at 875. 30 In re Kaiser Alum inum & Chem . Co., 214 F.3d 58 6, 593 (5th Cir. 20 0 0 ) (quotin g United States v. El Paso Co., 68 2 F.2d 530 , 542 (5th Cir. 198 2)). 4 whether it was a routine practice to prepare that type of docum en t versus whether the docum ent was instead prepared in response to a particular circum stance.”31 The work-product doctrine “is not an um brella that shades all m aterials prepared by a lawyer, however.”32 Materials created in the ordin ary course of business are excluded from the work-product privilege. 33 “If the docum ent would have been created regardless of whether litigation was also expected to ensue, the docum ent is deem ed to be created in the ordinary course of business and not in anticipation of litigation.”34 The m ere possibility that litigation m ay result is not determ inative. 35 “If in connection with an accident or an event, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is produceable in civil pre-trial discovery.”36 Herzing has raised the Faragher-Ellerth affirm ative defen se in this litigation. 37 Under the Faragher-Ellerth defense, “an em ployer will not be vicariously liable for harassm ent by a supervisor if it can show: (a) that the em ployer exercised reasonable care to prevent and correct prom ptly any sexually harassing behavior, and (b) that the plaintiff em ployee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the em ployer or to avoid harm otherwise.”38 Generally, an em ployer m ay satisfy the first prong of the Faragher-Ellerth defen se by dem onstrating 31 Motion Indus., Inc. v. Superior Derrick Servs., LLC, No. 15-1958 , 20 16 WL 760 776, at *5 (E.D. La. Feb. 26, 20 16) (citin g Piatkow ski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 20 0 0 WL 1145825, at *2 (E.D. La. Aug. 11, 20 0 0 )). 32 El Paso Co., 682 F.2d at 542. 33 Id. 34 Motion Indus., 20 16 WL 760 776, at *5 (citin g Piatkow ski, 20 0 0 WL 11458 25, at *2). 35 Id. 36 Id. (quotin g Carroll v. Praxair, Inc., No. 0 5-30 7, 20 0 6 WL 1793656, at *2 (W.D. La. J une 28, 20 0 6)). 37 See R. Doc. 54 at 1– 2. 38 E.E.O.C. v. Boh Bros. Con st. Co., 731 F.3d 444, 462 (5th Cir. 20 13) (quoting W atts v. Kroger Co., 170 F.3d 50 5, 50 9– 10 (5th Cir. 1999)) (internal quotations om itted). 5 that (1) it has a harassm ent policy that was prom ulgated to em ployees an d properly im plem ented, and (2) if an em ployee m akes a com plaint under that policy, the em ployer conducts a prom pt investigation. 39 Am brose-Frazier argues that because Herzing raises the Faragher-Ellerth defense, Herzing “necessarily put at issue any notes from any investigation of the allegations of harassm ent, even if those notes were m ade by an attorney who could otherwise utilize the work product doctrine to shield the notes from discovery.”40 The third defense in Herzing’s answer states as follows: Herzing m aintained, im plem ented and enforced adequate and reasonable policies, practices and procedures, and provided training, posted notices and circulated com m unications to Herzing em ployees regarding unlawful or wrongful discrim ination, harassm ent and retaliation in the workplace, including but not lim ited to policies, practices and procedures to prevent, investigate, and prom ptly address and correct an y actions, conduct and/ or om issions involving unlawful or wrongful discrim ination, harassm ent or retaliation. 41 Herzing also states in its answer, “Herzing conducted a prom pt and effective investigation of the com plaints and violations of state and federal law, harassm ent, discrim ination, an d retaliation described in Plaintiff’s Com plaints, and took prom pt, appropriate, an d effective rem edial action in response to that com plaint.”42 Herzing’s em ployee handbook contains a com plaint procedure for harassm ent incidents: Upon notification of a harassm ent com plaint, Herzing will conduct a confidential and im partial investigation, which will include interviews with involved parties and, where appropriate, with em ployees who m ay be witnesses or have knowledge 39 Angeletti v. Lane, No. 12-50 3, 20 14 WL 43860 63, at *4 (M.D. La. Sept. 4, 20 14) (citing W illiam s v. Adm in. Review Bd., 376 F.3d 471, 478– 79 (5th Cir. 20 0 4)). See also Moay edi v. Com paq Com puter Corp., 98 F. App’x 335, 338 (5th Cir. 20 0 4) (per curiam ) (finding that em ployer was entitled to rely on FaragherEllerth affirm ative defense based on its quick investigation of the plaintiff’s harassm ent claim and the subsequent term ination of the plaintiff’s supervisor). 40 R. Doc. 55-1 at 3. 41 R. Doc. 54 at 1– 2. 42 R. Doc. 54 at 2. 6 of m atters relating to the com plaint. The com plaining em ployee will be notified of the results of the investigation. 43 Baiocchi’s notes were created during the investigation conducted by Baiocchi and Olson of Am brose-Frazier’s allegations of workplace discrim in ation. The investigation, which involved interviews of Am brose-Frazier and eight other Herzing em ployees “in an effort to evaluate Plaintiff’s allegations,” was conducted pursuant to Herzing’s policy, which required an investigation of each harassm ent com plaint. 44 Herzing argues that the interviews were not conducted in the ordinary course of business but rather “were conducted for the specific purpose of investigating Plaintiff’s April 30 , 20 13 com plaint,” and “were created in response specifically to Plaintiff’s discrim ination com plaint.”45 J udge Knowles agreed, finding that “[Baiocchi] prepared the docum ents in response to a particular circum stance, the accusation by plaintiff against defendants.”46 Of course, this would be true for every investigation of a harassm ent com plaint conducted pursuant to Herzing’s policy; that is, under Herzing’s policy, an em ployee’s lodging a com plaint of harassm ent or discrim ination would trigger an investigation specific to the allegations the em ployee m ade. It is clear that, pursuant to Herzing’s policy, the investigation would have been con ducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordin ary course of business. 47 Accordingly, the work-product privilege does not apply to Baiocchi’s notes. 43 R. Doc. 34-5 at 5. This excerpt from Herzin g’s em ployee handbook is attached to Am brose-Frazier’s m otion to com pel. Herzin g does not dispute the accuracy or authenticity of the excerpt. 44 R. Doc. 43 at 5. 45 R. Doc. 56 at 8. 46 R. Doc. 53 at 7. 47 See Motion Indus., 20 16 WL 760 776, at *5 (“If the docum ent would have been created regardless of whether litigation was also expected to ensue, the docum ent is deem ed to be created in the ordinary course of busin ess and not in anticipation of litigation.”). 7 The Court also finds the attorney-client privilege does not apply. The attorneyclient privilege protects from disclosure com m unications m ade in confidence by a client to his attorney for the purpose of obtaining legal advice and com m unications from the lawyer to the client “only to the extent that these are based on, or m ay disclose, confidential inform ation provided by the client or contain advice or opinions of the attorney.”48 The privilege, however, “is not a broad rule of law which interposes a blanket ban on the testim ony of an attorney.”49 It does not protect a com m unication “sim ply because it is m ade by or to a person who happens to be a lawyer.”50 The attorney “m ust have been engaged or consulted by the client for the purpose of obtaining legal services or advice services or advice that a lawyer m ay perform or give in his capacity as a lawyer, not in som e other capacity.”51 At the tim e she m ade her notes, Baiocchi was the director of hum an resources at Herzing, 52 and, although she also happened to be a lawyer, she was acting in her capacity as the hum an resources director when conducting the investigation in accordance with Herzing’s em ployee policy. Considering this, and in light of the Court’s analysis above, the Court finds that the attorney-client privilege does not apply to Baiocchi’s redacted notes from her May 10 , 20 13, interviews. 48 United States v. N eal, 27 F.3d 10 35, 10 48 (5th Cir. 1994) (quoting Wells v. Rushin g, 755 F.2d 376, 379 n . 2 (5th Cir.1985)). See also United States v. Pipkins, 528 F.2d 559, 562 (5th Cir. 1976). 49 Pipkins, 528 F.2d at 562– 63. 50 Levingston v. Allis-Chalm ers Corp., 10 9 F.R.D. 546, 551 (S.D. Miss. 198 5). See also United States v. Evans, 113 F.3d 1457, 1463 (7th Cir. 1997) (“The privilege extends only to com m un ications between a client and a professional legal advisor ‘in his capacity as such.’” (em phasis in original) (citation om itted)); Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 60 2 (8th Cir. 1977) (“A com m unication is not privileged sim ply because it is m ade by or to a person who happens to be a lawyer.”); Gen. Foods Corp. v. Jay V. Zim m erm an Co., No. 86-2697, 198 8 WL 5371, at *2 (S.D.N.Y. J an. 14, 1988 ). 51 Diversified, 572 F.2d at 60 2. See also Evans, 113 F.3d at 1463. 52 R. Doc. 43-2 at 20 . The parties do not dispute this. 8 Even if the attorney-client or work-product privileges were to apply, Herzing waived the privileges by asserting the Faragher-Ellerth defense. When a Title VII defendant affirm atively invokes a Faragher-Ellerth defense that is prem ised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work-product doctrine for all docum ents created as part of that investigation. 53 Accordingly, the Court finds that denying the m otion to compel Baiocchi’s unredacted notes constituted clear error an d was contrary to law. CON CLU SION For the foregoing reasons; IT IS ORD ERED that Am brose-Frazier’s Motion for Appeal/ Review of Magistrate J udge’s Ruling is GRAN TED . 54 53 See W illiam s v. United States Envtl. Servs., LLC, No. 15-168, 20 16 WL 617447, at *5 (M.D. La. Feb. 16, 20 16) (“Defendant has raised the Faragher/ Ellerth affirm ative defense . . . . Defendant has cited to the investigation . . . to show that it exercised reasonable care to prom ptly correct any harassing behavior. . . . By relying on its investigation to defend against Plaintiff’s allegations, Defendant has waived any applicable privilege with respect to not only the investigative report, but any underlying docum ents.”); Angelone v. X erox Corp., No. 0 9-60 19, 20 11 WL 4473534, at *2 (W.D.N.Y. Sept. 26, 20 11) (“[T]he clear m ajority view is that when a Title VII defendant affirm atively invokes a Faragher– Ellerth defense that is prem ised, in whole in or part, on the results of an internal investigation , the defen dant waives the attorneyclient privilege and work product protections for not only the report itself, but for all docum ents, witn ess interviews, notes and m em oranda created as part of an d in furtherance of the investigation.”); Reitz v. City of Mt. Juliet, 680 F. Supp. 2d 8 88 , 892– 93 (M.D. Tenn. 20 10 ) (“But the defendant cannot use the . . . report as a sword by prem ising its Faragher– Ellerth defense on the report, then later shield discovery of docum ents underlying the report by asserting privilege or work-product protection.”); Musa-Muarem i v. Florists’ Transw orld Delivery , Inc., 270 F.R.D. 312, 317– 18 (N.D. Ill. 20 10 ) (“Even assum ing, arguendo, that the docum ents are attorney-client privileged or protected work product, any such protection for these particular docum ents was waived by [the defendan t’s] assertion of its Faragher/ Ellerth defense.”); E.E.O.C. v. Outback Steakhouse of Fla., Inc., 251 F.R.D. 60 3, 611 (D. Colo. 20 0 8 ) (“Courts have interpreted an assertion of the Faragher/ Ellerth affirm ative defense as waiving the protection of the work product doctrine and attorney-client privilege in relation to investigations and rem edial efforts in response to em ployee com plaints of discrim ination because doing so brin gs the em ployer’s in vestigations into issue.”); W alker v. Cty . of Contra Costa, 227 F.R.D. 529, 535 (N.D. Cal. 20 0 5) (“If Defendants assert as an affirm ative defense the adequacy of their pre-litigation in vestigation into [the plaintiff’s] claim s of discrim ination , then they waive the attorney-client privilege and the work product doctrine with respect to docum ents reflectin g that investigation. Where a party puts the adequacy of its pre-litigation in vestigation at issue by asserting the in vestigation as a defense, the party m ust turn over docum ents related to that investigation , even if they would ordinarily be privileged.”). 54 R. Doc.55. 9 IT IS FU RTH ER ORD ERED that the February 24, 20 16, order denying Am brose-Frazier’s m otion to com pel is REVERSED , 55 and Am brose-Frazier’s m otion to com pel the production of Lisa Baiocchi’s unredacted notes is GRAN TED . 56 Herzing is to produce the unredacted docum ents to Am brose-Frazier by Frid ay, March 10 , 2 0 16 . IT IS FU RTH ER ORD ERED that Herzing’s m otion to expedite consideration of the m otion for appeal/ review is D EN IED AS MOOT. 57 N e w Orle a n s , Lo u is ian a, th is 8 th d ay o f March , 2 0 16 . ______________ ________ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 55 R. Doc. 53. R. Doc. 34. 57 R. Doc. 57. 56 10
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