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Privilege waived: Town ordered to produce attorney’s report in harassment investigation

The Town of Front Royal has been directed by a magistrate judge to disclose its communications with its retained attorney on an investigation into harassment claims made by a former town clerk after the former clerk’s motion to compel was granted in part.

Additional communications from the attorney regarding advice on the clerk’s termination was deemed to be protected by attorney-client privilege and is not part of the information ordered to be disclosed.

U.S. Magistrate Judge Joel C. Hoppe authored the March 31 decision in Brown v. Town of Front Royal, Virginia (VLW 022-3-152). The case was heard before the U.S. District Court for the Western District of Virginia at Harrisonburg.

Alleged harassment

The case stemmed from a discrimination, retaliation and harassment case brought by Jennifer Berry Brown. She alleged that, while employed as clerk to the town council, a council member repeatedly sexually harassed her beginning in early 2017. It continued unabated into 2018 and 2019.

Brown described the conduct as “a pattern of unwanted touching and inappropriate remarks” that persisted even after she insisted repeatedly that the behavior was unwelcome.

In August 2019, Brown met with the town’s director of human resources regarding her many complaints and was told she would hear back within two weeks. But Brown did not get a response until November 2019 when she was sent a document on the investigation summary report.

The opinion said the report “failed to address the many issues raised by [Brown] in her complaint, was wholly incomplete, was dismissive of [her] complaints … and was indicative of a sham investigation.”

Brown went on medical leave in December 2019. When she returned in January 2020, she was told her position would be terminated in February. Her role was to be abolished and transitioned into a part-time position.

Brown filed a complaint with the Equal Employment Opportunity Commission, or EEOC, in April 2020.  Later, in January 2021, Brown filed her complaint alleging violations of the Family and Medical Leave Act and Title VII of the Civil Rights Act of 1964, specifically alleging sex-based discrimination, unlawful retaliation and a retaliatory hostile work environment. Brown previously alleged that she faced “harsher standards than male staff members” and was passed over for a promotion following her harassment complaints.

Motion to compel

Brown filed a motion to compel in November 2021. In the brief in support, she alleged that following her harassment complaints in August 2019, the town hired outside counsel “to make sure that everything in the investigation, and later in the firing of [Brown], was done to insure [sic] it was legal.”

The motion sought information and documents underlying the outside counsel’s involvement in the investigation of Brown’s claims and in her termination.

Additionally, Brown claimed the town waived attorney-client privilege regarding these communications by voluntarily disclosing portions of the advice it received from outside counsel and because counsel conducted the investigation in tandem with the human resources department.

The town countered that it had not waived the privilege as it “has not raised reliance on advice of counsel as an affirmative defense.”

In addressing Brown’s request to compel the communications on her termination, Hoppe wrote that the town’s statement to the EEOC “did not put advice of counsel ‘at issue.’”

“The Town has not asserted reliance on the advice of counsel as an affirmative defense,” Hoppe noted. “Accordingly, I do not find that the Town has put at issue or otherwise waived the attorney-client privilege as to communications with [outside counsel] regarding Brown’s termination.”

Hoppe also said that the town’s statement that it retained counsel to ensure it acted within the law “does not waive the attorney-client privilege.”

As for the communications on the investigation of Brown’s harassment complaints, Hoppe said that “the analysis is different.”

“In her complaint, Brown asserts a claim against the Town for retaliatory hostile work environment, based largely on the conduct of another employee,” Hoppe wrote. “The Town’s awareness of Brown’s complaints about [the employee’s] alleged harassment and [outside counsel’s] investigation and the conclusions drawn therefrom, are part and parcel to the reasonableness of the Town’s response to Brown’s hostile work environment claim.”

Hoppe said that the hiring of outside counsel by Front Royal was done to investigate the claims made by Brown and to ensure the investigation was done legally. The judge said the town relied on both outside counsel and the human resources department “to determine whether the investigation showed ‘that there was sexual harassment or retaliation or a hostile work environment.’”

“The Town relied on its counsel to investigate Brown’s claims of harassment, develop conclusions about the investigation, and determine the necessity of remedial actions,” Hoppe wrote. “Communications on those points with the Town bear directly on the Town’s knowledge of Brown’s allegations of harassment and the reasonableness of its response.”

Since the town relied on counsel to assist with the investigation and advise on remedial measures, the town put the communications “at issue” in this case.

As such, Hoppe found that Front Royal “has waived the attorney-client privilege as to communications with [outside counsel] regarding the investigation of Brown’s complaints of harassment, [outside counsel’s] conclusions about the investigation, and her advice about any remedial measures to address the alleged harassment.”

Case status

Per court records, following an April 6 status conference, U.S. District Judge Thomas T. Cullen continued the trial in this matter, which was scheduled for May 31.The continuance came because both parties filed motions for summary judgment in March.

The town submitted an eight-page objection to Hoppe’s order on April 14, stating that it “objects to that portion of the Opinion which finds a waiver of attorney-client privilege related to the Berry investigation, submits that the magistrate judge’s opinion in that respect is clearly erroneous and contrary to the law protecting attorney-client privilege, and submits that this court must so find and set aside that portion of the Opinion.”

While the court scheduled a hearing for both motions for summary judgment on April 25, the hearing was canceled on April 19, per court records.