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WELZEL v. BERNSTEIN

August 16, 2005.

KAREN M. WELZEL, Plaintiff,
v.
RICHARD BERNSTEIN et al., Defendants.



The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

ORDER

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.

  I. FACTUAL BACKGROUND

  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 observed.*fn2

  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.

  A. Legal Standard

  "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. 404 (a).
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 ...


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