Employee fired for sexual harassment entitled to complaining employees’ identities without ‘attorneys’ eyes only’ protective order
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Tuesday, August 3, 2021

Employee fired for sexual harassment entitled to complaining employees’ identities without ‘attorneys’ eyes only’ protective order

By Glenn Sulzer, J.D.

In order to assess the reasonableness of an employer’s reliance on allegations of sexual harassment in making its decision to fire the employee, the identities of his accusers are subject to discovery.

An employer that claimed it fired an employee for sexual harassment must disclose the identities of his accusers, as well as an audio recording of the alleged harassment, according to a ruling by a federal court in Texas, in a suit in which the accused employee claimed the decision instead was motivated by age discrimination and retaliation. In addition, the evidence would need to be released without the shield of an "attorneys’ eyes only" protective order, as there is insufficient evidence of a credible fear of intimidation or physical harm. However, the court agreed to prohibit the disclosure of the identities of the employees or the audio recording to third parties (Perez. v. Bodega Latina Corp., July 30, 2021, Guaderrama, D.).

Fired because of harassment claims. In June 2019 the director of a grocery store in Texas was terminated after allegations of sexual harassment were made against him by three of his co-workers. There was also an audio recording in which the employee was allegedly sexually harassing one of the complainants. He subsequently brought suit, asserting claims for age discrimination and retaliation in violation of Texas Commission on Human Rights Act (Texas Labor Code, Chapter 21).

In response to the employee’s requests for production, interrogatories, and requests for disclosure, the employer produced an excerpted transcript of the audio recording and copies of the written statements. However, it redacted the complaining workers’ identities and other identifying information, claiming that "overwhelming safety and retaliation concerns" required that their identifying information be kept confidential.

Sought identities. However, the employee maintained that, in the absence of documentation identifying the person who made the recording or prepared the transcription, he would not be able to sit for a deposition. The employer responded that it would not be using the recording for the deposition and it declined to produce the recording until a protective order was in place.

The employee moved to compel production of the audio recording. The employer responded with cross motions seeking to compel the plaintiff’s deposition or, alternatively, dismissal of his claims.

Discoverable information. Initially, the trial court noted that, under Fed. R. Civ. P. 26(b), parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. Information is considered relevant at the discovery stage if there is "any possibility" that it may be relevant to the claim or defense of any party.

A court may decline to compel discovery, or may, for good cause, issue an order to protect a party or person from "annoyance, embarrassment, oppression, or undue burden," including specifying terms for the disclosure or discovery, designating the persons who may be present while the discovery is conducted, and requiring that confidential information be revealed only in a specified way. The issues before the court concerned the relevancy and discoverability of the complaining employees’ identities, and whether that information could be disclosed under an "attorneys’ eyes only" protective order.

Relevancy of accusers’ identities. The employer maintained that the disclosure of the complaining workers’ identities was not required because it did not intend to rely on them to support its claims or defenses in the lawsuit, to which they were not party. The disclosure of their identities, the employer averred, would serve no purpose other than to potentially endanger them.

Good faith and pretext. In addressing the employer’s argument, the court first noted that the central issue in employment discrimination cases is whether the employer reasonably believed the allegation and acted on it in good faith, or whether the employer did not actually believe it but instead used it as a pretext for an otherwise discriminatory dismissal.

In order to show pretext, the employee would need to produce evidence demonstrating that it was unreasonable for the employer to have relied on the workers’ allegations of sexual harassment, or that the employer did not in good faith believe them but relied on them in a bad faith pretext to discriminate against him on the basis of his age. Reasoning that the complaining workers would have material information on these issues, the court concluded that their identities were subject to discovery. At a minimum, it stressed, the plaintiff would need to know the identities of the employees in order to depose them or conduct other forms of discovery.

Attorneys’ eyes only protection order. The employer maintained that the accusers’ identities and the audio recording should be produced only under the protection of an "attorneys’ eyes only" designation because they had a legitimate fear of intimidation and potential physical harm from the disclosure of their identities. This fear was based on their belief that the employee had previously worked for the Mexican police and had connections that could be used in retaliation against them.

Worried about Mexican connections. In support of its assertions, the employer submitted a declaration by an employee in its Human Resources Department, who indicated that two of the complaining employees confided in him their fear of retaliation and its basis. However, the employer did not submit a declaration from any of the complaining employees or the other employees.

This evidence was insufficient for the employer to meet its burden of justifying the issuance of the protective order, the court concluded. Because attorneys’ eyes only orders are highly restrictive, the court explained, a party requesting such an order must describe the alleged harm it will suffer from any disclosure with a "particular and specific demonstration of fact." The employer failed to meet this burden, the court concluded. The HR employee’s declaration did not mention the third complaining employee (suggesting that she did not fear retaliation) and did not set forth the basis for the perceived fear of the two other complaining employees.

Disputed evidence. The only evidence that related to the basis of the complaining employees’ fear was disputed evidence that the employee allegedly revealed to other employees his allegedly illegal activity as a police officer in Mexico. The employee submitted a declaration stating that he had never worked in law enforcement in Mexico, never had been a police officer in Mexico, and did not have a friendship or any other relationship with any Mexican police officer.

Disclosure to third parties prohibited. As an alternative basis for a protective order, the employer stressed the "intimate" nature of the complaining employees’ accusations. The court was receptive to the employer’s concern but ruled that an attorneys’ eyes only protective order would not be appropriate because, to the extent the employee sexually harassed his coworkers, he had knowledge of the accusations. However, an appropriate accommodation, the court reasoned, would be to prohibit the disclosure of the identities of the complaining employees or the audio recording to third parties. The employee also offered to agree to a protective order providing for such prohibitions and further protection of their contact information.

Other protection given. Accordingly, the court instructed the parties to submit an agreed-upon protective order designating their identities (and any document bearing the same) and the audio recording (and any transcript thereof bearing their identities) as "confidential," and their contact information (and any document bearing the same) as "attorneys’ eyes only." In addition, the court instructed the parties to agree on pseudo-names (e.g., "Jane Doe 1") for the complaining employees, and use those names in motions and briefs filed with the court.

The case is No. EP-19-CV-00360-DCG.

Attorneys: Enrique Chavez, Jr. (Chavez Law Firm) for Moises Perez. Nicolas Del Campo (Del Campo Law Firm) for Bodega Latina Corp. d/b/a El Super.

Companies: Bodega Latina Corp. d/b/a El Super

Cases: EvidenceDiscovery SexualHarassment SexDiscrimination AgeDiscrimination Retaliation Discharge StateLawClaims Privacy GCNNews TexasNews

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