United States District Court, W.D. Virginia, Roanoke Division
CARLA A. CLEHM formerly Blankenship, Plaintiff,
BAE SYSTEMS, INC., et al., Defendants.
S. Ballou United States Magistrate Judge
Carla A. Clehm moves for an order compelling discovery (Dkt.
No. 113), to which defendants object. This dispute centers around
a document the plaintiff has termed “document X”
which described problems BAE employee Flo Bishop had related
to other employees' purported sexual activities at work.
Plaintiff wants to conduct additional discovery, including
depositions, related to BAE's knowledge and investigation
of the issues raised in the document. In support, plaintiff
argues that evidence that employees, including members of
management, were engaging in sexual activity at work supports
their claim of a hostile work environment and shows a
dysfunctional sexual harassment policy. Plaintiff contends
that this is “sufficient to impose liability upon BAE
for sexual harassment.” Pl's. Reply at 2, Dkt. 131.
Defendant BAE characterizes document X as a “sideshow
issue.” Defendant BAE maintains that plaintiff was
already generally aware of the supposed consensual sexual
conduct described in document X from the start of this
litigation, and emphasizes that the author, Flo Bishop,
testified that she did not feel sexually harassed due to the
activities described in document X. Rather, Bishop felt that
the actions described in her letter affected her and
others' ability to do their jobs properly. D's Resp.,
Dkt. 126 at 5.
has narrowed her discovery requests related to document X to
ask for the “cell phone numbers and carrie[r]s for the
individuals involved in the sex ring” so that plaintiff
can subpoena cell phone records. Plaintiff asserts she would
use this information to verify whether the “sex
ring” existed. Plaintiff also seeks an ESI search of
defendant BAE's computer to determine whether relevant
documents have been withheld. Plaintiff seeks a second
deposition of BAE human resources employees Matt Linkous and
Susanna Worrel because these individuals investigated the
allegations in document X. Plaintiff also wants to depose
Walker Suthers related to his investigation of the
allegations in document X, as well as Virginia Robinson, who
is named in document X. Additionally, plaintiff seeks an
order requiring defendant BAE to provide “sufficient
answers to plaintiff's discovery requests concerning this
issue, including . . . a response as to why document [X] was
not previously provided . . .” and “complete
investigation documents concerning the matter and/or permit
additional discovery . . . .” Pl's. Reply at 7-8,
establish a hostile work environment claim, plaintiff must
show that she was subjected to conduct that was: (1)
unwelcome; (2) based on her gender; (3) sufficiently severe
or pervasive to alter the conditions of her employment and
create an abusive work environment; and (4) imputable to her
employer. Stewart v. MTR Gaming Grp., Inc., 581 F.
App'x 245, 247 (4th Cir. 2014) citing Okoli v. City
of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011). As I
understand from her brief, Plaintiff aims to use document X
and related evidence to impute liability to BAE for her
hostile work environment claim, set forth in Count I of her
Second Amended Complaint. See Dkt. No. 59, at 9.
When a plaintiff's claim is based on the conduct of a
co-worker, the employer is liable “only if it was
negligent in controlling working conditions.”
McKinley v. Salvation Army, 192 F.Supp.3d 678,
687-88 (W.D. Va. 2016), aff'd sub nom. McKinley v.
The Salvation Army, No. 16-2016, 2017 WL 1382547 (4th
Cir. Apr. 18, 2017) quoting Vance v. Ball State
Univ., U.S., 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565
(2013). Thus, I grant such portions of plaintiff's motion
to compel that are relevant and proportional to the claims
and defenses in this action. See Federal Rule of
Civil Procedure 26(b).
second motion to compel discovery (Dkt. No. 113) is GRANTED
in part and DENIED in part and I hereby
ORDER as follows:
Plaintiff's request for cell phone numbers and carriers
Plaintiff's request for an ESI search of defendant
BAE's computers is DENIED. However, I note that Federal
Rule of Civil Procedure 26(e) places a continuing duty on all
parties to timely supplement discovery responses.
Plaintiff's request for a second deposition of Matt
Linkous and Susan Worrell limited to issues related to
document X is GRANTED. Plaintiff's request to depose
Walker Suthers is also GRANTED. However, plaintiff's
request to depose Virginia Robinson is DENIED.
Plaintiff's request that defendant BAE provide
“sufficient answers to plaintiff's discovery
requests” is DENIED. However, I note that document X is
relevant for discovery purposes and BAE has a continuing duty
to supplement discovery responses under FRCP 26(d).
Plaintiff's request that defendant BAE provide all the
investigation documents concerning the matters in document X
is GRANTED and BAE shall produce, or affirm that is has
already produced, all non-privileged documents regarding its
investigation of document X, and BAE shall identify, or
affirm that it has already identified, all withheld documents
on a proper privilege log.
 In Dkt. No. 113, plaintiff also moved
to continue the trial date in this case, which I granted,
setting the new trial date for August 28-September 1, 2017,
and re-setting all applicable deadlines based on ...