Opinion
No. 3-01-CV-2230-D
October 17, 2002
MEMORANDUM ORDER
Defendant American Airlines, Inc. has filed a motion for protective order in connection with a document request served by plaintiffs in this racial harassment and discrimination case brought under the Civil Rights Act of 1866, 42 U.S.C. § 1981. At issue is Request for Production No. 3, which seeks documents pertaining to "any complaint or report of racial harassment or of a racially hostile work environment made by any employee of Defendant at any facility operated by Defendant within the continental United States during the calendar years 1997 and 1998." (Def. Mot, Exh. 1 at 5-6). Defendant contends that this document request is overbroad and creates an undue hardship to the extent it seeks nationwide discovery. According to defendant, discovery should be limited to the locations where the alleged harassment and discrimination occurred — American's Headquarters at Centrepoint (HDQ) and D/FW Airport. By way of cross-motion, plaintiffs seek to compel the production of documents relating to incidents of racial harassment at 91 different facilities operated by defendant throughout the United States. Plaintiffs argue that this broad discovery is reasonably related to defendant's affirmative defense under Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998) and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2275 (1998). The motions have been fully briefed by the parties and are ripe for determination.
This precise issue was recently addressed by the United States District Court for the Southern District of New York in Spina v. Our Lady of Mercy Medical Center, 2001 WL 630481 (S.D.N.Y. Jun. 7, 2001). In that case, the plaintiff, who was employed as an office clerk, alleged that she had been sexually harassed by her manager, Percy Sajid. Defendant raised a Faragher/Ellerth defense, contending that it exercised reasonable care to prevent and correct promptly any harassing behavior and that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities. During discovery, plaintiff requested documents related to another employee, Arkady Shear, who had been terminated after other females complained of sexual harassment. Defendant objected to this discovery as overbroad and irrelevant. Plaintiff responded that other instances of harassment by other employees "may lead to admissible evidence which will demonstrate that `the defendant hospital's sexual harassment policy and procedures are inadequate,' thus preventing [defendant] from taking advantage of the [ Faragher/Ellerth] affirmative defense." Spina, 2001 WL 630481 at *2. The district court disagreed. In denying plaintiffs motion to compel, the court wrote:
While the Supreme Court has mandated that Fed.R.Civ.P. 26(b)(1) be construed broadly . . ., courts should not allow parties to "roam in the shadow zones of relevancy to explore matter which does not presently appear germaine on the theory that it might conceivably become so." (Citation omitted). Here, this is exactly what Plaintiff appears to attempt to accomplish. While the law requires that the discovery sought must be reasonably calculated to lead to the discovery of admissible evidence . . ., Plaintiffs request in the instant matter is merely a fishing expedition . . .Id. (citations omitted). See also Hasbrouck v. BankAmerica Housing Services, 187 F.R.D. 453, 459-60 (N.D.N.Y. 1999) (rejecting argument that Faragher/Ellerth expanded scope of otherwise permissible discovery); Harnish v. American Airlines, Inc., No. 4-98-CV-476-BE (N.D. Tex. Mar. 3, 1999) (limiting discovery to specific location where alleged discrimination occurred).
Plaintiffs have failed to present any case authority in support of their argument that nationwide discovery should be allowed in this case. Instead, plaintiffs attempt to distinguish Spina on the grounds that they have verified at least three prior incidents of racial harassment at American facilities in Los Angeles, Tulsa, and Miami. While corrective action was taken in response to those incidents, defendant failed to implement similar remedial measures at its HDQ and D/FW Airport facilities. This, according to plaintiffs, constitutes some evidence that defendant did not exercise reasonable care to prevent and correct promptly harassing behavior. Plaintiffs misunderstand Faragher/Ellerth. Where, as here, an employer has an harassment policy in place, the pertinent inquiry is whether: (1) the particular employee complaining of harassment has been given an opportunity to report the offensive conduct and, if so, (2) the employee unreasonably fails to take advantage of such preventative or corrective opportunities. The discovery propounded by plaintiffs, which seek documents pertaining to complaints of racial harassment at other facilities, goes far beyond the parameters of Faragher/Ellerth. Consequently, it is not reasonably calculated to lead to the discovery of admissible evidence.
At his deposition, Plaintiff Tony Boyd testified that he knew defendant had policies against discrimination and harassment in the workplace and was familiar with the procedures for complaining of harassment. (Def. App., Exh. E).
For these reasons, defendant's motion for protective order is granted and plaintiffs motion to compel is denied. SO ORDERED.
Plaintiffs also seek an order compelling the production of various documents and tangible evidence pertaining to complaints and investigations of racial harassment at the HDQ and D/FW Airport facilities. At the hearing, defendant agreed to produce any responsive documents and evidence for the time period 1997 to the present.