United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
The plaintiff, Mary Pat McCullough, was terminated from her employment as a secretary to the President of the Fraternal Order of Police, Chicago Lodge 7 ("FOP") on April 5, 2011. Soon after her termination, McCullough filed a charge of discrimination with the EEOC, alleging that she and other female employees were subjected to sexual harassment and a hostile work environment by management and other employees. On November 21, 2012, McCullough filed a timely complaint in federal court asserting violations of Title VII for sex discrimination and retaliation, as well as corresponding state law claims. Fact discovery closed on October 31, 2013. Now before this Court is McCullough's Motion to Preclude Certain Claims and/or Defenses (Dkt. 75). For the reasons discussed below, the Court grants the motion in part.
Mary Pat McCullough held her position as secretary to the President from June 2002 until April 5, 2011. She alleges that during her employment, she and other female employees were subjected to a hostile working environment because of their sex involving (1) the repeated use by management and employees of language that was offensive and/or degrading to women; (2) the forwarding of emails containing vulgar and obscene content; and (3) comments of a sexual nature and/or about female employees' bodies. First Am. Compl. (Dkt. 39) ¶ 10. McCullough further alleges that she regularly complained to her supervisors and the FOP's President about the harassment, but that FOP failed and refused to take prompt and appropriate action to correct the harassment. Id. ¶¶ 11-12.
On or about December 15, 2010, one of McCullough's co-workers, Marie Marrero, complained internally, in writing, that she was being subjected to sexual harassment. Id. ¶ 13. FOP initiated an investigation, which was conducted by the law firm of Asher, Gittler & D'Alba Ltd. (the "D'Alba Investigation"). Pl.'s Mot. ¶¶ 4-5, 7; Def.'s Resp. at 1-2. FOP reports that it hired the outside law firm "in response to a complaint of sexual harassment by an employee... After receiving the sexual harassment complaint, Defendant's President contacted the law firm... due to the prospect of litigation." Def.'s Resp. at 1-2. D'Alba conducted interviews, including of McCullough on March 16, 2011. Pl.'s Mot. ¶ 4. McCullough asserts that during her interview, she engaged in statutorily protected activity, "including opposing discrimination prohibited by Title VII." Id. McCullough also asserts that D'Alba drafted a report regarding the investigation (the "D'Alba report") and gave it to FOP on or about March 28, 2011. Id. ¶ 5. McCullough was terminated on April 5, one week later. Id. ¶ 6. FOP asserts that D'Alba "conducted confidential interviews and prepared a report for Defendant that contained legal analysis of the investigation." Def.'s Resp. at 2. FOP adds that the report was marked "privileged and confidential" and was only viewed by three management-level employees. Id.
Before this Court is the plaintiff's Motion to Preclude Certain Claims and/or Defenses. McCullough broadly requests that this Court preclude FOP from offering evidence in this case that (1) FOP took reasonable care to promptly correct the behavior reported by Marrero and that it did correct that behavior; (2) FOP took reasonable steps to investigate the behavior reported by Marrero and that it did investigate that behavior; (3) FOP took reasonable steps to determine whether or not the behavior reported by Marrero had occurred and that it did make that determination; and (4) McCullough did not object to sexual harassment during the D'Alba investigation.
A. The Parties' Positions.
During fact discovery, FOP claimed at several junctures that details regarding the D'Alba investigation and report were protected by the attorney-client and work product privileges. See, e.g., Def.'s First Am. Answer to Pl.'s First Set of Interrog. (Dkt. 75-1) ¶¶ 7-8, 12-14, 18, 20-21, 24. Further, FOP has objected to discovery requests seeking to determine whether FOP would offer evidence at summary judgment or trial about what steps it took to investigate Marrero's complaint. See, e.g., Def.'s Resp. (Dkt. 75-2) ¶¶ 10-19. FOP stated that its "current intentions or thoughts on what it may or may not introduce as evidence at summary judgment or trial are not relevant or probative of anything... To that end, Defendant has not yet fully determined what evidence it will offer in this case." Id. ¶¶ 10-11, 14-15, 18-19. FOP has represented, however, that it would not "voluntarily inject" into the case issues such as whether FOP took reasonable care to promptly correct the alleged harassment and whether it took reasonable steps to investigate the allegations. Id. ¶¶ 10, 12. Further, FOP raised standing objections to deposition questions regarding the D'Alba investigation and FOP witnesses refused to answer deposition questions on the subject (the present motion does not reflect whether McCullough moved to compel responses to such questions).
McCullough argues that the D'Alba investigation and report is not protected by the attorney-client privilege, in particular because FOP took the report to another law firm to consider FOP's next steps and because FOP described the report as factual in nature during the parties' administrative proceedings. Pl.'s Reply (Dkt. 87) at 3. As for the work product privilege, McCullough argues that the D'Alba investigation and report are not protected because there is no evidence that litigation was threatened before McCullough and Marrero filed EEOC charges, among other reasons. Id. at 4.
McCullough also argues, alternatively, that if the D'Alba investigation and report are privileged, then FOP has waived its privileges by making information acquired through the D'Alba investigation "essential to its defense" and by "denying the fact that Plaintiff complained of sexual harassment during the D'Alba investigation...." Pl.'s Mot. ¶ 12. McCullough also points out that FOP admitted that there is a possibility that the investigation may come into play during summary judgment or at trial; FOP hedged on this point in its responses to McCullough's Requests to Admit and denied that it would not offer evidence on these subjects. Def.'s Resp. ¶¶ 10-11, 14-15, 18-19. McCullough's concern is essentially that FOP will offer evidence relating to the D'Alba investigation to establish that it took reasonable steps to investigate and correct the behavior reported by Marrero, all the while not disclosing to McCullough the content of the investigation and resulting report. Pl.'s Reply at 6. McCullough is requesting either an order precluding FOP from offering evidence or making claims or inferences on these subjects, or an order that FOP respond to certain of McCullough's First Set of Interrogatories.
FOP responds that the D'Alba Report is a privileged and confidential attorney-client communication and also constitutes protected attorney work product. FOP further maintains that it has not waived the attorney client or work product privileges because FOP has not injected a new factual or legal issue into the case, such as through an affirmative defense. Def.'s Resp. (Dkt. 86) at 3. Rather, FOP argues, it has simply denied McCullough's claims, which does not result in waiver. Id.
B. McCullough's Motion is Granted with Certain Parameters.
The Court grants McCullough's Motion to Preclude Certain Claims and/or Defenses, but sets certain parameters to guide the parties as they ...