The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me for discovery. Currently pending and ready for resolution is Plaintiff's Motion to Compel More Complete Responses to Plaintiff's Interrogatories and Requests for Documents ("Plains. Mot."). For the reasons stated herein, the motion will be granted in part and denied in part.
Plaintiff, an employee of the District of Columbia Department of Corrections ("DCDC") since 1983, claims that she was sexually harassed by Sgt. Eugenia Haines ("Haines") while assigned to the District of Columbia Jail. Complaint ("Compl.") ¶¶ 3, 6, 11, 28. Plaintiff claims the harassment occurred sporadically between June of 2003 and May of 2006. Compl. ¶ 28.
Under Rule 26 of the Federal Rules of Civil Procedure, "[f]or 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). Furthermore, "the scope of discovery is within the sound discretion of the trial court," and a "ruling by the trial court limiting or denying discovery will not be cause for reversal unless an abuse of discretion is shown." Chrysler Corp. v. Fedders. Corp., 643 F.2d 1229, 1240 (6th Cir. 1981). Although defendant does not contest the discoverability of the majority of plaintiff's requests, each will be considered below.
II. Hostile Environment Sexual Harassment Claims Generally
In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the Supreme Court made it clear that Title VII covers claims of hostile environment sexual harassment. Id. at 79. Quoting one of its earlier decisions, the Court reiterated "'the critical issue'" with regard to such claims, namely, "'whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.'" Id. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993)). Describing the objective nature of the statute, the Court noted that "'[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.'" Id. at 81 (quoting Harris, 510 U.S. at 21).
In proving a claim of same-sex harassment, there are three theories upon which a plaintiff may proceed. Jones v. Potter, 301 F. Supp. 2d 1, 7 (D.D.C. 2004). First, a plaintiff may show "that the sexual behavior is motivated by actual homosexual desire." Id. Second, a plaintiff may show "'that the harassment is framed in such sex-specific and derogatory terms . . . as to make it clear that the harasser is motivated by general hostility' towards members of the same gender in the workplace." Id. (quoting Oncale, 523 U.S. at 80). Finally, a "plaintiff may demonstrate 'that there is direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.'" Id. (quoting Oncale, 523 U.S. at 80-81).
III. Plaintiff's Discovery Requests
Describe in detail any discipline which defendant has ever imposed on Eugenia Haines for any reason, including without limitation any sexual harassment, violation of cease and desist orders, or other misconduct.
Defendant initially objected to this interrogatory on the grounds that 1) the DC Code and DC Personnel Regulations prohibited the release of such information, 2) the information sought was not relevant nor reasonably calculated to lead to admissible evidence, 3) records of disciplinary actions may not be considered for a period exceeding three years, and 4) there were no disciplinary records for Haines. Id.
Plaintiff argues that, based on communications with other DCDC personnel as well as answers given by Haines herself, defendant had not provided a complete response to this interrogatory. Id. Specifically, plaintiff points to the fact that since defendant filed its initial response, it had turned over documents relating to disciplinary actions taken against Haines, and to the fact that although plaintiff learned that Haines had been disciplined in relation to a charge that she was in possession of an authorized missing service weapon while working at the hospital, plaintiff had not received any information about the incident from defendant. Id. at 8. Plaintiff also objects to defendant's limiting their response to its interrogatory to written communications. Id. at 8-9.
Defendant now claims that it has produced Haines' entire disciplinary file and that the event referenced above by plaintiff, the one involving a service weapon, did not constitute discipline or if it did, would have been included in the documents previously produced. Defendant's Opposition to Plaintiff's Motion to Compel More Complete Responses to Plaintiff's Interrogatories and Requests for Documents ("Defs. Opp.") at 5.
Although defendant indicates that it has produced Haines' entire disciplinary file, as plaintiff correctly notes, the interrogatory is not limited to written communications. Therefore, defendant will, within ten days of the date of this opinion, submit a declaration attesting either to the fact that it has additional information about disciplinary actions that were taken against Haines (and if so, provide plaintiff with a description of such actions) or to the fact that it does not possess any additional information responsive to this interrogatory.
Describe in detail all allegations or complaints of sexual harassment or inappropriate conduct by Sgt. Haines, formal or informal, which have been made by any other DCDC employees or inmates, including without limitation any allegations that Sgt. Haines made sexual or romantic advances, acted inappropriately, or otherwise harassed anyone and the Agency's investigation(s) thereof.
Defendant initially objected to this interrogatory on the grounds that 1) the DC Code and DC Personnel Regulations prohibited the release of such information, 2) the information sought was neither relevant nor reasonably calculated to lead to admissible evidence, and 3) certain complaints would be produced once a protective order was in place. Id.
Plaintiff argues that information regarding other incidents of harassment by Haines is relevant to 1) whether defendant tolerated a hostile work environment, 2) whether defendant was on notice of Haines' prior harassment, and 3) whether defendant acted reasonably to prevent or correct sexual harassment in the workplace. Id. Plaintiff also argues that such evidence is admissible to show motive or intent, under Rule 404 of the Federal Rules of Evidence. Id. at 11. Plaintiff also notes that although certain documents have been produced, she is still waiting for others. Id.
Although defendant has agreed to produce the requested documents and contends that it is still working to do so,*fn1 it is worth noting why such information is discoverable, at a minimum, under Rule 404. In this interrogatory, plaintiff seeks evidence of other similar "bad acts." As I stated in a previous opinion, the court must consider certain factors prior to allowing such discovery:
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, 464 U.S. 894, 104 S.Ct. 241, 78 L.Ed.2d 231 (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).
In this instance, plaintiff has met her burden of establishing that there is a reason to believe that Haines' motivation in harassing her was similar to Haines' motivation in harassing the other DCDC employees. As articulated by the court in Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995), "[t]he sexual harassment of others, if shown to have occurred, is relevant and probative of [the alleged harasser's] general attitude of disrespect toward his female employees, and his sexual objectification of them." In other words, evidence that Haines harassed other female officers is probative of Haines' general attitude toward her female subordinates.
Describe in detail all allegations of sexual harassment, formal or informal, that Sgt. Haines made against other DCDC employees (including without limitation Pat Britton and Lts. Curry and Lambkin), including without limitation any investigation by the Agency, its deposition, any instances where merit was found to her allegations, and any such related documents (in accordance with Instruction No. 8).
Defendant initially objected to this interrogatory on the grounds that the DC Code and DC Personnel Regulations prohibited the release of such information but simultaneously agreed to produce certain documents once a protective order was in place. Id.
Plaintiff argues that Haines' sexual orientation is at issue in the case in that it is probative of whether or not she sexually harassed plaintiff. Id. at 12-13. Plaintiff also argues that information relating to complaints of sexual harassment filed by Haines against her supervisors may be probative of why they responded to plaintiff's claims as they did. Id. at 13. Finally, plaintiff argues that this information may be probative of Haines' credibility. Id.
Defendant counters that complaints of sexual harassment by Haines are not relevant. Defs. Opp. at 2. Specifically, defendant claims that 1) plaintiff's proof of same-sex sexual harassment does not rest on Haines' sexual orientation, 2) Haines' claims do not involve the same supervisors, 3) Haines' credibility is not at issue, and 4) the request implicates the privacy interests of other employees of the DCDC. Id. at 3.
Plaintiff's claims of sexual harassment are made under Title VII and the District of Columbia Human Rights Act ("DCHRA").*fn2 Under either of these statutes, plaintiff may only recover against the District of Columbia, and not Haines personally, the theory being that an employer is generally liable for hostile work environment sexual harassment by a supervisor. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
As to the discoverability of Haines' sexual orientation, the Supreme Court has held that an inference of sexual harassment may be drawn in a same-sex harassment case if it is known that the harasser was a homosexual. Oncale, 523 U.S. at 80. Specifically, the Court stated that an inference of discrimination "would be available to a plaintiff alleging same-sex harassment, if there was credible evidence that the harasser was homosexual." Id. Significantly, the Court noted that the "harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex" in that "[a] trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace." Id. Alternatively, plaintiff may "offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." Id. at 80-81. Information relating to Haines' sexual orientation is therefore relevant to plaintiff's claim of same-sex harassment.
In addition, information relating to claims of sexual harassment by Haines is relevant in two ways. First, it may lead specifically to information about DCDC's motive to dismiss claims made against Haines by others, including plaintiff. In other words, the existence of claims by Haines might provide DCDC with a motive to dismiss claims made against Haines. Second, it may lead generally to information about defendant's response to such claims. In Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), the Supreme Court held that while employers may be held liable for the creation of a hostile work environment by one of their supervisors, employers could defend themselves against such claims if they could show that they "exercised reasonable care to prevent and correct promptly any harassing behavior, and if the plaintiff/employee unreasonably failed to take advantage of any ...