The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
In accordance with the accompanying Memorandum Opinion, it is,
hereby, ORDERED that Plaintiff's Motion to Compel Testimony
Regarding Sexual Harassment Claim of Brenda A. Pilon Against
Richard Bernstein, and Memorandum in Support [#26] is DENIED.
It is further, hereby, ORDERED that plaintiff show cause
within ten days of the date of this Order why Plaintiff's
Motion to Compel Inspection should not be denied. Defendant will
then have ten days within which to respond.
SO ORDERED. MEMORANDUM OPINION
This case was referred to me by Judge Huvelle to resolve all
discovery disputes. Currently pending and ready for resolution is
Plaintiff's Motion to Compel Testimony Regarding Sexual
Harassment Claim of Brenda A. Pilon Against Richard Bernstein,
and Memorandum in Support and Plaintiff's Motion to Compel
Inspection.*fn1 For the reasons stated herein, the former
motion will be denied and plaintiff will be ordered to show cause
why the latter motion should not be denied.
Plaintiff, Karen M. Welzel, was formerly employed as the
Corporate Director of Human Resources of defendant, RB
Associates, Inc., a real estate ownership, management, and
development company operating in the Washington, D.C.
metropolitan area. In addition to filing suit against RB
Associates, plaintiff also names the following defendants: 1)
Richard Bernstein, the President and Chief Operating Officer of
RB Associates, 2) James Martens, the Executive Vice President and Chief Financial Officer of RB Associates, and
3) Crawford Sherman, Vice President of Hotel Operations of RB
Associates. Plaintiff claims that when she worked for RB
Associates, she was subjected to gender discrimination and that
she was retaliated against when she attempted to oppose this and
numerous other discriminatory practices that she
II. PLAINTIFF'S MOTION TO COMPEL
Plaintiff alleges that on November 26, 2000, at a meeting
between herself, Martens and Wim Pastoor, the then-Vice President
of Hotel Operations, regarding the company's newly formed
reservations office, Martens indicated that when he and Bernstein
had previously visited the office, "they saw two rows of black
faces looking back at them."*fn3 Defendant's Opposition to
Plaintiff's Motion to Compel Testimony Regarding Sexual
Harassment Claim of Brenda A. Pilon Against Richard Bernstein and
Memorandum in Support ("Defs. Opp.") at Exhibit 4, Deposition of
Karen Welzel, page 169. Plaintiff claims that she cautioned
Martens about making such statements and on September 28, 2001,
plaintiff sent Martens a three page memorandum about the incident
and copied Bernstein. On December 7, 200, plaintiff was denied a
pay increase as well as one week of vacation, both of which had been promised
earlier. According to plaintiff, this was done in retaliation for
her having written the memorandum.
On July 21, 2005, plaintiff deposed Bernstein. During the
deposition, plaintiff asked Bernstein questions regarding the
circumstances surrounding the alleged retaliation and discharge
of Brenda A. Pilon, a former General Manager for the Hotel
Lombardy, one of RB Associates' properties. In a suit brought
eleven years ago, Pilon accused Bernstein of sexually harassing
her and then firing her in retaliation for her having refused his
advances. Bernstein refused to answer these questions on the
grounds of relevancy. Pursuant to Rule 26 of the Federal Rules of
Civil Procedure, plaintiff has now moved this court to compel
this deposition testimony of Bernstein as well as Martens as to
the Pilon lawsuit.
"For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action. Relevant
information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence." Fed.R.Civ.P. 26(b)(1). As I have noted
previously on several occasions, the court must consider certain
factors prior to allowing the introduction of evidence relating
to other similar "bad acts":
Evidence of other "bad acts" is never admissible
simply to establish a propensity to engage in similar
acts. Fed.R. Evid. 404(b). Provided its relevance
outweighs it tendency to prejudice the opponent of
the evidence unfairly, evidence of other acts of
discrimination or retaliation similar to the
discrimination or retaliation charged have been
admitted to show, for example, motive or intent.
Miller v. Poretsky, 595 F.2d 780 (D.C. Cir. 1978);
Spulak v. K Mart Corp., 894 F.2d 1150, 1155 (10th
Cir. 1990); Herman v. National Broadcasting Co.,
744 F.2d 604, 609 (7th Cir. 1984); Jay Edwards Inc.
v. New England Toyota Distributor, 708 F.2d 814, 824
(1st Cir. 1983), cert. denied, 104 S.Ct. 241 (1983); Hairston v. WMATA, 1997 WL 411946
(D.D.C. April 10, 1997); Cardona v. Skinner,
729 F. Supp. 193, 199 (D.P.R. 1990). See also Dougherty
v. Barry, 604 F. Supp. 1424, 1439 (D.D.C. 1985)
(other acts of retaliation probative that a custom or
policy of retaliation existed). By the same token,
only discrimination or retaliation of the same
character and type as that is alleged is probative.
To establish that a prior discriminatory act is
probative of the intention or motive of the
defendant, there must be some reason to believe that
his motivation or intention in the acts in question
was similar to his motivation or intention on the
prior occasion. But, there is nothing in human
experience which suggests that a person who is
bigoted as to race is equally likely to refuse to
accommodate a disabled person unless one wants to say
that certain folks are "like that" and always act a
certain way as to people who are different from them.
But to say that is to draw the very inference the law
never permits a finder of fact to draw. Fed.R. Evid.
White v. U.S. Catholic Conference, 1998 WL 429842, at *5
(D.D.C. May 22, 1998).
Thus, plaintiff has the burden of establishing the relevancy of
other bad acts by showing that "there must be some reason to
believe that his motivation or intention in the acts in question
was similar to ...