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San Antonio, June
The Johns Hopkins
I. MANAGING THE
A prompt and
thorough factual investigation is essential to managing the discrimination
Moreover, a resounding agency victory for the university may discourage the
continuing on to the law suit stage and may deter an attorney from taking the
A. Notify the
Depending on the
institution's agreement with its insurance carrier, the first step
upon receipt of a
charge may be to notify the carrier about the existence and the
nature of the
B. Notify the Human
Resources Manager or Department Chair.
manager or department chair overseeing the particular department
or office for
insight on the supervisor/employee or faculty/student relationship
and any prior
situations that the person may have had with other employees or
students. Find out
whether the supervisor has made similar decisions. Also,
the supervisor consulted with the human resources office or
the department chair
prior to making the adverse decision and whether the
advice was followed.
Also, create a chronology of events leading up to the
C. Collect Documents
and Real Evidence.
1. Review and
evaluate the entire personnel or academic file of complainant. It
may be necessary to
review files of similarly situated people to determine
treatment. The well documented case is the best case to defend.
contemporaneous documents and notes are the most compelling,
probative, and best
2. Review the
University's policies, practices, and guidelines regarding the
employment or academic situation and determine whether the
the University's policies regarding progressive counseling
regarding hiring and promotion, or regarding grading and
awarding of degrees.
3. Review the
supervisors's notes, calendars, and any E - Mail
4. Review and
evaluate any other relevant documents, including
compensation records, worker's compensation records, and
Determine whether the university's policies and procedures
were followed in
regard to the handling of the internal grievance and internal
D. Interview the
Supervisor or the Faculty Member.
1. Obtain the full
cooperation and assistance of the supervisor, manager, or
faculty member. They
have probably never been accused of harassment
tends to be an extremely tense and emotional time for them
as well. Explain the
entire agency procedure with them, including the time that
the process takes
and the prohibition against retaliation. Explain your role in the
process and the
university's obligation to cooperate with the agency. Also
make clear that you
are the institution's attorney, not their personal attorney.
2. Interview and
obtain all of the facts on why and how the supervisor made
decision. The supervisor or faculty member should be able to
reason for the decision. Review key documents with them to
ensure accuracy and
rationale for statements in the documents. If there are
discrepancies in the
documents, find out the reasons. It is better to know the
weaknesses in the
case at this point, than later after more time and resources
are expended. Give
them an opportunity to tell their side of the story. Ask
their opinions on
the complainant's motivation in filing the charge.
credibility and demeanor. Does this person have jury appeal? Is
credible? Does this person act the part of a harasser?
4. Write your notes
of the interview in affidavit form and give the supervisor or
opportunity to review and sign the affidavit. This document, written
by the attorney,
would constitute attorney-work product generally and would
not be discoverable
unless you agreed to produce the statement. In re
Technologies Second Half 1984 Securities Litigation, 122 F.R.D.
555 (N.D. Cal.
1988). This statement serves several purposes: locks person
preserves testimony in the event the witness becomes adverse or
leaves the employ;
preserves witness' memory; and enables you to best evaluate
E. Interview Other
Employees or Students.
1. In an
harassment case particularly, you may need
to interview other people
in the work place or
the classroom who may have heard the alleged racial
epithets or sexual
comments and observed the personal interactions. The key
to early evaluation
of a case is to get a balanced view.
2. Review with the
individual the reason for the interview and explain the
agency process with
him. Explain your role and the university's obligation to
cooperate with the
agency. Reiterate that it is against university policy and the
law to retaliate
against anyone for cooperating with an investigation. Also,
explain that you are
the institution's attorney, not their personal attorney.
3. Let the person
tell his side of the story. Listen and ask key questions: who;
what; where; when;
and how. Also ask employee his opinion about whether
the complainant was
treated fairly. For any opinions expressed, explore the
factual basis for
the opinions, if any. Elicit facts.
4. Again, write your
notes of the interview in affidavit form and give the person
an opportunity to
review and sign the affidavit. This document, written by the
constitute attorney-work product generally and would not be
you agreed to produce the statement. In re Convergent
Half 1984 Securities Litigation, 122 F.R.D. 555 (N.D.
Cal. 1988). This
statement serves several purposes: locks person into story;
in the event that the witness becomes adverse or leaves the
employ; enables you
to best evaluate the case; and preserves witness' memory.
5. Because rumors
tend to abound, let the person know that it is best
not to discuss the
case among others, for many reasons including any
of defamation. Also, the communications would be
F. Avoid Claims of
Be explicit that
retaliation is against the law whether against the complainant or
any witnesses. If
complainant remains employed or enrolled, it may be
necessary to change
reporting and supervising responsibilities.
G. Evaluate the
Merits of the Charge.
investigation and review of the facts, the university should have a good
idea about the
merits of the case. If it appears that the complainant would be
able to state a
prima facie case of discrimination and the university has no
for its actions, now would be a good time to reach a
advantages of settling at this point is that back pay, attorney's
fees, and other
damages should be at a minimum, and reinstatement, if
applicable, may the
most practicable. Also, if the investigation revealed facts
that the university
would not want to disclose but would have to reveal during
the remaining agency
process and certainly during discovery, settlement at this
point would keep
those facts confidential.
H. Write the
1. A chronological
narrative is generally most effective in telling the university's
side of the story,
with references to supporting documentation.
2. Raise any
defenses including timeliness, jurisdiction, and scope.
3. Any discrepancy
that you can locate in the complainant's charge should be
dates of employment, job title, and name of supervisor. This
heavily against the complainant's credibility.
4. Limit Requests
for Information to the particular office, division, supervisor,
or job title.
I. Coordinate the
Agency's Factfinding Conference and On-Site Interviews.
Notify the employees
of the request for interviews. See Sample Letter attached
as Exhibit A.
Counsel may be present at interviews of supervisory or
J. Participate in
the Agency's Conciliation or Predetermination Settlement Efforts.
1. If the agency
renders a probable cause determination, the university should
options. Explore non-monetary settlements that include
training, or placement services. If the complainant is so
disagreeable and you
believe that the university will always have problems with
this person, you may
recommend a monetary settlement that buys out the
to work at your institution.
2. Evaluate the
weaknesses of the case including the jury appeal or lack thereof
of the supervisor
and the complainant. How sympathetic a plaintiff does the
3. The university
may decide against settlement if it believes that the agency
flawed or somehow biased. Remember though, if the case is a
loser, the value of
the case may rise due to attorney's fees. On the other hand,
the plaintiff's view
of the value of the case may be so high, that the university has
no choice but to
start discovery in an attempt to weaken and to raise doubt in
mind about his case.
4. Confer with the
insurance carrier and evaluate insurance coverage.
II. MANAGING THE
A. Respond to the
1. Review Complaint
to see how it tracks the agency charge and whether there
are any new
allegations from the agency charge. For example, has plaintiff now
where that allegation was absent in the charge, or has the
claimed age discrimination in addition to race. If new allegations,
file motion to
dismiss that portion of case that fails to meet jurisdictional and
2. Determine whether
causes of action sounding in tort are viable. Evaluate
discrimination statutes or worker's compensation laws preempt the tort
claims. See, e.g.,
Clarke v. Kentucky Fried Chicken of California, Inc., 57
F.3d 21 (1st Cir.
1995)(the Massachusetts discrimination statute and worker's
preempted the negligence claims); Chroszy v. Wentworth
Technology, 70 FEP Cases (BNA) 201 (D. Mass. 1996)(the
discrimination statute preempted the negligent supervision
and Maxey v. M.H.M.
Inc., 828 F. Supp. 376 (D. Md. 1993)(the Maryland
statute preempted the negligent supervision claim).
File a motion
to dismiss under
Fed. R. Civ. P. 12(b)(6).
3. If individuals
are named in the law suit, determine whether they can be
jurisdictional grounds. See, e.g., Tomka v. Seiler Corp., 66 F.3d
1295, 1314 (2d Cir.
1995)(no individual liability under Title VII); Birbeck v.
Corp., 30 F.3d 507 (4th Cir. 1994)(no individual liability under
the ADEA); Bishop v.
Okidata, Inc., 864 F. Supp. 416 (D.N.J. 1994)(no
under the ADA); Miller v. Maxwell's Int'l Inc., 991 F.2d 583,
587-88 (9th Cir.
1993), cert. denied sub nom, Miller v. LaRosa, 114 S.Ct.
individual liability under Title VII and the ADEA).
4. There may be
grounds to dismiss the entire Complaint.
a. where the hirer
and firer are the same individual. Buhrmaster v.
Transportation Co., 61 F.3d 461 (6th Cir. 1995), cert.
denied 116 S. Ct.
785 (1996); Tyndall v. National Education Centers,
Inc., 31 F.3d 209
(4th Cir. 1994); LeBlanc v. Great American
Insurance Co., 6
F.3d 836, 847 (1st Cir. 1993); Lowe v. J.B. Hunt
Transport, Inc., 963
F.2d 173 (8th Cir. 1992); Proud v. Stone, 945
F.2d 796 (4th Cir.
b. in a disability
case, where there is excessive absenteeism. Meyers
v. Hose, 50 F.3d 278
(4th Cir. 1995); Tyndall, supra; Carr v. Reno, 23
F.3d 525 (D.C. Cir.
1994); Guice-Mills v. Derwinski, 967 F.2d 794
(2d Cir. 1992).
c. where an employee
has invoked Title IX, rather than Title VII.
Lakoski v. James, 66
F.3d 751 (5th Cir. 1995); Wedding v. University
of Toledo, 862 F.
Supp. 201 (N.D. Ohio 1994).
d. where the
plaintiff has failed to allege any facts, simply conclusions.
Roberson v. Bowie
State University, 899 F. Supp. 235 (D. Md. 1995).
5. File Answer.
B. Prepare and
Coordinate the Media Response.
Decide who will
respond on behalf of the institution and what will be
Generally, the best response is one that is dignified and that is
not an attack on the
plaintiff's character. Always deny the allegations and state
confidence in the
institution's ability to disprove the allegations.
C. Resolve Conflicts
If the supervisors
and other employees are named in the law suit, determine
whether there is a
conflict of interest in representing both the institution and
them. See the
following NACUA outlines of other presentations: Management
Stephen S. Dunham (June 23, 1995); Management of Litigation -
- The Individually
Named Defendant, Peter G. McDonough (June 23, 1995);
and Coping with the
Unexpected in Representing Multiple Clients, Susan L.
Walker & Robin
Weaver (June 24, 1993).
D. Use In-House
and/or Outside Counsel.
See the following
NACUA outlines of other presentations: The Use of Outside
Counsel vs. In-House
Litigation, The Use of Different Models: Blends of
Approaches, Byron H.
Higgins (November 10, 1995); Selecting, Hiring and
Counsel, Shelley Z. Green and Bertrand M. Harding, Jr.
(November 10, 1995);
and The Symbiotic and Occasionally Productive
In-house Counsel and Outside Counsel, Philip Burling,
Peter H. Rugar, and
Lawrence White (June 26, 1993).
E. Develop a
1. Depose the
a. Generally, it is
advantageous to depose the plaintiff as early as
possible to get his
side of the story first, in his own words. Be prepared
both factually and
legally. Know what facts you need for purposes of
judgment. "Begin with the end in mind," as Stephen
R. Covey advocates
in The 7 Habits of Highly Effective People (1990).
Ask questions that
focus on the elements of proof and the university's
defenses. The most
successful summary judgment motion is the one
which quotes almost
exclusively from the plaintiff's deposition.
b. Lock the
plaintiff into a set of facts. Do not accept general
plaintiff expresses opinions, elicit factual basis, if any.
cannot articulate factual basis for his opinion, summary
judgment is likely.
"[A plaintiff's] own naked opinion, without more, is
not enough to
establish a prima facie case of . . . discrimination."
Goldberg v. B. Green
and Co., Inc., 836 F.2d 845, 848 (4th Cir.
i. what happened?
ii. who saw what;
who said what; who did what?
iii. when did it
iv. where did it
v. who are the
vi. how did you
c. If plaintiff
claims that someone was treated more favorably, find out
who and how. This
will help limit discovery when plaintiff will
personnel files for everyone in the particular office.
d. Ask questions
i. when was
plaintiff last seen by a doctor?
ii. who is the
plaintiff's family physician?
iii. who referred
the treating physician in question?
iv. what major life
activities have been adversely affected?
v. has plaintiff
mitigated his damages?
Interrogatories and Document Requests to obtain information
regarding amount of
damages and expenses; names and addresses of health
names and addresses of people with personal knowledge;
names and addresses
of employers; information on expert witnesses and the
medical history; and history of filing claims against other
documents like a journal, log or calendar that plaintiff may
statements that plaintiff has obtained; efforts to mitigate damages;
and tax returns. Do
not use these methods to give plaintiff an opportunity to
prepare his story
with drafting by an attorney.
documents from prior and subsequent employers, educational
health care providers, including student health services. See,
e.g., Mann v.
University of Cincinnati, 824 F. Supp. 1190, aff'd, 152 F.R.D.
119 (S.D. Ohio
4. Issue FOIA
requests for the agency's files or subpoena those files. See
Thalhimer's Department Store, 93 F.R.D. 657 (E.D. Va. 1982).
5. Take the Mental
or Physical Examination of Plaintiff.
a. Fed. R. Civ. P.
35(a) requires that the plaintiff has placed his mental
condition in controversy and that the university has shown
good cause. O'Quinn
v. New York University Medical Center, 163
F.R.D. 226 (S.D.N.Y.
1995); Eckman v. University of Rhode Island,
160 F.R.D. 431 (D.R.I.
1995); Peters v. Nelson, 153 F.R.D. 635, 638
(N.D. Iowa 1994);
Tomlin v. Holecek, 150 F.R.D. 628 (D. Minn.
1993); Robinson v.
Jacksonville Shipyards, Inc., 118 F.R.D. 525
(M.D. Fla. 1988);
Cody v. Marriott Corp., 103 F.R.D. 421 (D. Mass.
1984); Lowe v.
Philadelphia Newspapers, Inc., 101 F.R.D. 296 (E.D.
b. Right to select
physician of own choosing? Peters, 153 F.R.D. at
637; Stinchcomb v.
U.S., 132 F.R.D. 29, 30 (E.D. Pa. 1990); Liechty
v. Terrill Trucking
Co., 53 F.R.D. 590, 591 (E.D. Tenn. 1971).
c. Counsel is not
permitted to be present during the
DiBari v. Incaica
Armadora, 126 F.R.D.
12, 13 (E.D.N.Y. 1989); Cline v. Firestone
Tire & Rubber Co.,
118 F.R.D. 588, 589 (S.D. W. Va. 1988);
Califano, 513 F. Supp. 1011, 1016 (E.D. Pa. 1981);
Brandenberg v. El Al
Israel Airlines, 79 F.R.D. 543, 546 (S.D.N.Y.
1978); Dziwanoski v.
Ocean Carriers Corp., 26 F.R.D. 595 (D. Md.
psychiatrist is not permitted to be present during the
v. Upjohn Co., 155 F.R.D. 23, 26-27 (D. Conn.
1994); Tomlin v.
Holecek, 150 F.R.D. 628, 632 (D. Minn. 1993); but
see Zabkowicz v.
West Bend Co., 585 F. Supp. 635, 636 (E.D. Wis.
1984); Lowe v.
Philadelphia Newspapers, Inc., 101 F.R.D. 296 (E.D.
e. Video taping or
recording the examination upon a showing of good
cause. DiBari, 126
F.R.D. at 14.
6. Limit the Scope
of Discovery by Plaintiff.
a. Guard against the
overly broad and the unduly burdensome
document requests, and deposition notices. Protect the
university from the
overzealous plaintiff or plaintiff's counsel who turns a
case into a disparate impact, pattern or practice, or
class action type
b. While discovery
is broad, there are safe guards against harassment,
oppression. Fed. R. Civ. P. 26(c). "Information sought
in discovery must be
'germaine' to the subject matter. . . . . Although
the scope of
discovery is broad, it is not unlimited, and the basic
touchstone is always
relevance to the subject matter. The 'subject
matter' of the
litigation is defined by the pleadings of the parties."
Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C.
c. Use the
allegations in the complaint and plaintiff's own statements
witnesses, location of the discrimination or harassment,
d. Limit discovery
geographically to the campus, office or department
where the alleged
discrimination occurred. James v. Newspaper
Agency Corp., 591
F.2d 579, 582 (10th Cir. 1979); Witten v. A.H.
Smith & Co., 100
F.R.D. 446 (D. Md. 1984), aff'd, 785 F.2d 306
(4th Cir. 1986);
Duncan v. State of Maryland, 78 F.R.D. 88, 94 (D.
e. Protect non-party
witnesses and confidential employee evaluations.
Cook v. Yellow
Freight System, Inc., 132 F.R.D. 548, 551 (E.D. Cal.
initiation of a law suit does not by itself, grant plaintiffs the
right to rummage
unnecessarily and unchecked through the private
affairs of anyone
they choose. A balance must be struck."); and
Superior Court, 187 Cal. Rptr. 4 (1982); Byrne v. N.Y.
Telephone, 55 FEP
Cases 544 (S.D.N.Y. 1990); and Craig v.
Municipal Court, 161
Cal. Rptr. 19 (1979). See also Gehring v. Case
Corp., 43 F.3d 340,
342 (7th Cir. 1994)(personnel files were reviewed
in camera and the
court held that privacy interests compelled limited
v. University of Richmond, 65 FEP Cases
(BNA) 172 (E.D.Va.
1994)(peer faculty assessments were reviewed in
confidentiality and non-disclosure agreements
witnesses' personnel records.
g. Assert FERPA to
protect disclosure of other students' academic
President, Trustees, and Vice Presidents from deposition on
the grounds of
harassment and annoyance. See Digital
Corp. v. System
Indus., Inc., 108 F.R.D. 742 (D. Mass. 1986).
i. Assert a
qualified privilege for omsbud officer's files. Kientzy v.
Corp., 133 F.R.D. 570 (E.D. Mo. 1991);
Garstang v. Superior
Court, 46 Cal. Rptr. 2d 84 (1995). See also
Fed. R. Evid. 501.
j. If a public
institution, assert exemptions under State Public Records
Act, Open Records
Act, and Sunshine laws.
7. Decide Whether to
Disclose Internal Investigations.
a. Disclosure of
this evidence is a key, strategic decision. If the
not to produce the evidence, the university would be
precluded at trial
from having the evidence admitted. If the investigation
prompt, and it remediated the situation, the university
may decide that it
would be advantageous to produce the evidence so
as to use it at
trial. If the university does not want to disclose the
university would need to assert a privilege. The answer
to whether the
information is discoverable will vary depending on
whether the ombuds
officer, attorney, agent of attorney, or affirmative
conducted the investigation of the internal complaint.
b. Who constitutes
an agent of an attorney so that the university can
attorney-work product doctrine? Upjohn Co. v United
States, 449 U.S. 383
(1981). See also Edna Epstein & Michael
Attorney Client Privilege and the Work Product Doctrine,"
1989 A.B.A. Sec.
Lit. (2d ed).
c. Documents created
by an attorney and an agent of the attorney are
attorney-work product, unless plaintiff can show
substantial need and
undue hardship. Fed. R. Civ. P. 26(b)(3);
Co. v. U.S. District Court for the District of Arizona,
881 F.2d 1486, 1494
(9th Cir. 1989); United States v. Davis, 131
F.R.D. 391, 403-07 (S.D.N.Y.
witness statements taken and prepared by attorney are
protected under the
attorney-work product doctrine. However, these
may be discoverable
if they have been disclosed to third parties (e.g.
the EEOC); if the
plaintiff can demonstrate need (e.g. unavailable
witness), or if the
statements have been used to refresh the witness'
to deposition. Rauh v. Coyne, 744 F. Supp. 1186
(D.D.C. 1990); In re
Convergent Technologies, supra; Castle v.
Inc., 744 F.2d 1464 (11th Cir. 1984); In re Martin
Marietta Corp., 856
F.2d 619 (4th Cir. 1988), cert. denied, 490 U.S.
1011 (1989); In re
Doe, 662 F.2d 1073, 1081 (4th Cir. 1981), cert.
denied sub nom, Doe
v. United States, 455 U.S. 1000 (1982).
e. Assert the
attorney-client privilege to protect disclosure of
documents. Upjohn, supra; Golden Trade, S.r.L.
v. Lee Apparel Co.,
143 F.R.D. 514, 518 (S.D.N.Y. 1992); In re
John Doe Corp., 675
F.2d 482 (2d Cir. 1982).
f. Forbid ex parte
communications with former employees who were
involved in the
internal investigation. Camden v. State of Maryland,
910 F. Supp. 1115
(D. Md. 1996).
g. Assert the
self-critical analysis privilege or other privilege to protect
and affirmative action plans. The courts, however,
are reluctant to
recognize an absolute privilege in discrimination cases.
Hardy v. New York
News, Inc., 114 F.R.D. 633 (S.D.N.Y. 1987);
Witten v. A.H. Smith
& Co., 100 F.R.D. 446 (D. Md. 1984), aff'd,
785 F.2d 306 (4th
Cir. 1986); Zahorik v. Cornell University, 98
F.R.D. 27, 32-33 (N.D.N.Y.
1983). But see Siskonen v. Stanadyne,
Inc., 124 F.R.D. 610
(W.D. Mich. 1989)(no privilege recognized in
University of Pennsylvania v. EEOC, 493 U.S.
privilege recognized for confidential peer review
8. Depose Other
a. Fact Witnesses.
i. Depose those
witnesses who are adverse and for whom you
do not have a signed
ii. Prepare the
university's witnesses for depositions by the
opposing party. Care
should be taken not to have the witness
which is being withheld from discovery on
so that the privilege is not inadvertently
waived by refreshing
recollection. See Fed. R. Evid. 612.
university witness not to discuss testimony with
others and not to
compare notes. Always conduct a mock
deposition so that
the witness knows what to expect. Consider
use of the video
tape, "Preparing for a Deposition in a Business
Case," by J.A.
Jannuzzo, Esq. (Matthew Bender & Co
b. Experts and
i. A treating
physician is not always an expert retained in
litigation under Fed. R. Civ. P. 26(a)(2)(B) and
26(b)(4). See also
Patel v. Gayes, 984 F.2d 214 (7th Cir.
1993); Wreath v.
U.S., 161 F.R.D. 448 (D. Kan. 1995);
Chakales v. Hertz
Corp., 152 F.R.D. 240 (N.D. Ga. 1993)
ii. See also NACUA
outline, Effective Use of Medical Experts
Cases, Thomas Flygare (June 24, 1995)
F. Evaluate the Case
for Purposes of Mediation and Settlement.
1. Evaluate the case
for likelihood of victory and value. Consult with
insurance carrier for its experiences on range of settlements and jury
2. When selecting a
mediator, consult outside counsel and peer institutions for
G. File a Motion for
1. Even in
discrimination cases, the courts give great deference to universities
for their academic
decisions. Wynne v. Tufts University School of Medicine,
976 F.2d 791 (1st
Cir. 1992); Hankins v. Temple University, 829 F.2d 437
(3d Cir. 1987);
Lewin v. Medical College of Hampton Roads, 910 F. Supp.
1161 (E.D. Va.
1996); Ellis v. Morehouse School of Medicine, Civil Action
1:93-CV-28886-FMH (N.D. Ga. 1996); Andriakos v. University of
867 F. Supp. 804 (S.D. Ind. 1992), aff'd, 19 F.3d 21 (7th
Cir. 1994); Doe v.
Washington University, 780 F. Supp. 628 (E.D. Mo.
1991). But see
Carlin v. Trustees of Boston University, 907 F. Supp. 509 (D.
2. In the employment
setting, the courts tend to treat universities as they do
Compare Gallo v. Prudential Residential Services, 22 F.3d
1219 (2d Cir. 1994),
and Saxton v. A T & T Co., 10 F.3d 526 (7th Cir.
1993), to Ray v.
Peabody Institute of The Johns Hopkins University, 11 F.3d
31 (4th Cir. 1993),
cert. denied, 114 S.Ct. 2102 (1994), and Ward v. The
University, 861 F. Supp. 367 (D. Md. 1994). See also Beck
v. University of
Wisconsin Board of Regents, 75 F.3d 1130 (7th Cir. 1996);
Bina v. Providence
College, 39 F.3d 21 (1st Cir. 1994), cert. denied, 115
S.Ct. 1406 (1995);
Kobrin v. University of Minnesota, 34 F.3d 698 (8th Cir.
1994); Luxemburg v.
Texas A&M University System, 863 F. Supp. 412 (S.D.
Tex. 1994), aff'd,
59 F.3d 1240 (5th Cir. 1995).