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Waugh v. Pathmark Stores

April 4, 2000

ETHEL L. WAUGH, ET AL., PLAINTIFFS,
v.
PATHMARK STORES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosen, United States Magistrate Judge

FOR PUBLICATION

CAMDEN VICINAGE

HONORABLE JOSEPH H. RODRIGUEZ

OPINION

I. INTRODUCTION

Presently before the court is the motion of the plaintiffs, Ethel and Robert Waugh, to compel the deposition of John Thomas Wynn, Esquire, Defendant Pathmark's in-house counsel, and to compel the production of documents created by Mr. Wynn allegedly related to the remediation efforts of Defendant Pathmark relative to Plaintiff Ethel Waugh. After having reviewed the submissions of the parties as well as the argument conducted on the record on March 23, 2000, the plaintiffs' motion shall be denied.

II. FACTUAL AND PROCEDURAL BACKGROUND

On March 26, 1999, the Waughs filed the instant lawsuit against Pathmark Stores, Inc. and several John Does, claiming racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., and several common law violations, arising from Ethel Waugh's employment with Pathmark.

Plaintiff Ethel Waugh has been an employee in the meat and deli departments of Pathmark's grocery store in Pleasantville, New Jersey, for nearly twenty years. (Plaintiffs' Brief at 1; Complaint ¶8). Ms. Waugh claims that in 1996 she began to complain of racial discrimination in the Pleasantville store to the store manager, Ron Travia, as well as to Pathmark's Southern Division Human Resources Manager, Rick McGinley. (Id.). She further asserts that Pathmark did not respond to these complaints. Thus, in January 1997, Ms. Waugh contacted the NAACP's Atlantic City branch for assistance. (Id.). As a result of this contact, on February 11, 1997, the NAACP forwarded a letter to Mr. Travia notifying him of Ms. Waugh's complaints. (Id.). Pathmark internally forwarded this letter to Rick McGinley, as well as to John Thomas Wynn, Esquire, one of Pathmark's in-house counsel. (Id., Exhibit A). The matter was assigned for investigation to Ghislaine L. Bond, Pathmark EEO Manager.

Pathmark denies that Ms. Waugh ever complained of discrimination prior to the letter from the NAACP, although Pathmark concedes that Mr. Waugh contacted Vice President Robert Paton in January 1997 in relation to Mrs. Waugh's allegations. (Pathmark Brief at 10; Plaintiffs' Brief, Exhibit F, Response to Charge of Discrimination). Both Mr. Wynn and Mr. McGinley followed up with Ms. Bond on the development of her investigation. (Plaintiffs' Brief, Ex. A). Most significantly for the purposes of this motion, Mr. Wynn sent Ms. Bond an e-mail on March 5, 1997, inquiring into the status of the investigation. The e-mail states in full:

Subject: NAACP and Waugh

William Marsh's letter of 2/11/97 has been referred to me by Marc S. Please contact me to advise me of the status of this matter asap.

Thanks. (P's Brief, Exhibit A, P-29).

Ms. Bond concluded her investigation on or about May 14, 1997, (id. at 2), at which time she reported her findings during a meeting with certain Pathmark employees. (Id. at 2, Exhibit B). The employees present at this May 14th meeting were Rick McGinley, Pathmark Southern Division HR Manager, Grant McLaughlin, Pathmark VP of Marketing and former Regional Manager, and Mr. Wynn. (Id.).

The plaintiffs contend that these two contacts with Ms. Bond related to the investigation -- the e-mail to Ms. Bond requesting status on the Waugh matter and the attendance at the May 14 meeting -- convert Mr. Wynn's involvement in the matter from that of legal advisor to that of participant and decision maker. In the alternative, the plaintiffs contend that Pathmark's defense interposed in this litigation that Pathmark conducted a prompt and reasonable investigation and remediation of Plaintiff Ethel Waugh's complaints effectively waives any attorney-client privilege claims related to Mr. Wynn's involvement in the Waugh matter specifically as it relates to Pathmark's ...


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