Koumoulis v. Indep. Fin. Mktg. Grp., Inc.
| Decision Date | 01 November 2013 |
| Docket Number | 10-CV-0887 (PKC) (VMS) |
| Parties | TASSO KOUMOULIS, CHRISTOS HATZIS, DOMINIC MILITO and PETER DAFNIOTIS, Plaintiffs, v. INDEPENDENT FINANCIAL MARKETING GROUP, INC., LPL FINANCIAL CORPORATION and ASTORIA FEDERAL SAVING AND LOAN ASSOCIATION, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiffs move to compel the production of documents, withheld as privileged, that contain communications between Defendants and their outside counsel concerning internal investigations of Plaintiff Tasso Koumoulis's discrimination and retaliation complaints. See Letter from Kenneth A. Goldberg, Esq. to Hon. Vera M. Scanlon (the "Joint Letter"), ECF No. 41. Plaintiffs also seek to depose Defendants' outside counsel concerning these internal investigations. Id. at 4. Defendants move to compel Plaintiffs to provide a privilege log that would list communications between Plaintiffs and their counsel regarding internal complaints and internal investigations. Id. at 9. After reviewing the Parties' submissions, this Court ordered that Defendants file, under seal, selected documents for in camera review. See Order, Sept. 30, 2013, ECF. For the reasons stated herein, Plaintiffs' motion to compel is granted in part and denied in part. Defendants' motion to compel is granted in part and denied in part.
Plaintiffs Mr. Tasso Koumoulis ("Mr. Koumoulis"), Christos Hatzis ("Mr. Hatzis"), Dominic Milito ("Mr. Milito") and Peter Dafniotis ("Mr. Dafniotis") are current and former employees of Defendants Independent Financial Marketing Group, Inc., LPL Financial Corporation (collectively, "LPL")1 and Astoria Federal Savings and Loan Association ("Astoria Federal"). Am. Compl. ¶¶ 14-19, Mar. 19, 2010, ECF No. 3.
Plaintiffs allege that Defendants discriminated against them on the basis of their religion, national origin and race or color; subjected Plaintiffs to a hostile work environment; and retaliated against Plaintiffs for their complaints of unlawful discrimination. Id. ¶¶ 22-25. Plaintiffs' religious affiliation is with the Greek Orthodox Church. Id. ¶ 21. Mr. Koumoulis, Mr. Hatzis and Mr. Dafniotis are of Greek ancestry. Id. ¶ 21. Mr. Hatzis claims Defendants further discriminated against him on the basis of his disability, which included major depressive disorder. Id. ¶¶ 48-58. Mr. Koumoulis alleges Defendants also discriminated against him on the basis of his age, which was fifty-eight at the time of his firing. Id. ¶¶ 59-71. Plaintiffs allege that LPL's actions violated Title VII, 42 U.S.C. § 2000e et seq.; Section 1981 of the Civil Rights Act of 1866 ("Section 1981"), 42 U.S.C. § 1981 et seq.; the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq.; and the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq. Furthermore, Plaintiffs allege that all three Defendants' discriminatory and retaliatory behavior violated the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. See Am. Compl.
Defendants generally deny these allegations and raise several affirmative defenses, including a Fifth Affirmative Defense that:
Plaintiffs' claims are barred, in whole or in part, because Defendants exercised reasonable care to prevent and correct promptly any discriminatory behavior by having anti-discrimination policies and procedures for investigating and preventing discrimination with a complaint procedure and Plaintiffs unreasonably failed to take action, pursuant to these policies or otherwise, to be free from discrimination.
Answer 14, May 24, 2010, ECF No. 8.
The Parties have almost concluded discovery. They have exchanged thousands of documents and conducted depositions. The present dispute concerns the production of certain documents identified by Defendants on their privilege log. See Joint Letter Ex. A ("Privilege Log"). This privilege log lists fifty-seven documents, each one of which was withheld based on both attorney-client privilege and attorney work-product privilege. Id.
The withheld documents concern Mr. Koumoulis's internal complaints of unlawful discrimination and retaliation, and Defendants' internal investigations. See Joint Letter 2.2 Mr. Koumoulis raised several internal complaints, the first of which was a complaint on or about January 9, 2008 to Ms. Mary Healy ("Ms. Healy"), a Human Resources employee, about Mr. Matt Baval ("Mr. Baval"), a Sales Manager. Am. Compl. ¶ 66; see Answer ¶ 66. Plaintiffs allege that Mr. Baval made numerous, derogatory comments about Greek people, the Greek Orthodox religion and Mr. Koumoulis's age. Am. Compl. ¶¶ 27-40, 59-65. Neither the pleadings nor the motion papers states whether Mr. Koumoulis's January 2008 complaint was aprotected complaint of unlawful discrimination and/or retaliation; the Parties also do not explain whether Defendants conducted an internal investigation at that time.3
Mr. Koumoulis's next complaint was raised in or around March 2008, when he and the other Plaintiffs filed their Charges against Defendants with the United States Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶¶ 9, 67; see Answer ¶ 67.
On November 14, 2008, Mr. Koumoulis "submitted a memorandum regarding a meeting" that was held the prior day. Am. Compl. ¶ 68. Defendants placed Mr. Koumoulis on administrative leave while they conducted an investigation. Id. On December 2, 2008, they issued him a memorandum upon the completion of that investigation. Id.; see Answer ¶ 68; Joint Letter Ex. D at P0832 (December 2, 2008 memorandum). The pleadings again do not specify whether Mr. Koumoulis's November 14, 2008 complaint was a complaint of unlawful discrimination and/or retaliation, nor do the pleadings specify whether Defendants' investigation concerned discrimination and/or retaliation. In their motion papers, Plaintiffs describe Mr. Koumoulis's November 14, 2008 memorandum as a "protected complaint," and Defendants do not dispute this point; this Court will therefore accept Plaintiffs' unrefuted representation for the purposes of this motion. Joint Letter 2.
Plaintiffs further allege that Mr. Koumoulis was issued an "unjustified memorandum" related to customers' concerns on or about February 5, 2009, and he responded in writing on February 24, 2009. Am. Compl. ¶ 69; Answer ¶ 69 (confirming these dates); Joint Letter Ex. D at P0311-12 (February 5, 2009 memorandum). Plaintiffs contend, again without opposition, that Mr. Koumoulis's February 24, 2009 response was a "protected complaint." Joint Letter 2. The documents reviewed in camera provide some support for this assertion.
On July 7, 2009, Defendants issued Mr. Koumoulis a final warning that criticized his job performance. Am. Compl. ¶ 70; Answer ¶ 70. Two days later, on July 9, 2009, Mr. Koumoulis filed an internal complaint that the parties admit included allegations of discrimination, harassment and retaliation. Am. Compl. ¶ 70; Answer ¶ 70. Defendants sent Mr. Koumoulis a memorandum titled "Findings and Conclusions of Investigation" on July 29, 2009; in this memorandum, Defendants concluded that his complaints were "unfounded." Joint Letter Ex. D at P0846-47. Defendants fired Mr. Koumoulis on September 8, 2009. Am. Compl. ¶ 71; Answer ¶ 71. The Plaintiffs received their Notice of Right to Sue from the EEOC in December 2009, and they filed the present action on March 1, 2010. Am. Compl. ¶ 10; Compl., Mar. 1, 2010, ECF No. 1.
During a telephone conference with the Court, Defendants described the withheld attorney-client communications as documents concerning the present litigation and the EEOC Charges; concerning "general outside counsel used in conjunction with performance issues"; "generally privileged documents that are not even arguably part of the investigation"; and an estimated "six to ten" "isolated e-mails between outside counsel and the [human resources] individuals" related to the internal investigation, in which outside attorneys "provid[ed] legal advice but [did] not conduct[] the investigation, [and did] not decid[e] any business decisions." Tel. Conference Tr. 16:15-17:22, Apr. 8, 2013, ECF No. 47.
A few privilege log entries involve Defendants' in-house counsel Marjory Robertson, Esq. ("Ms. Robertson"), and not outside counsel. See Privilege Log. Based on Defendants' privilege log, Ms. Robertson was involved in matters related to Mr. Koumoulis since at least January 8, 2008. See Privilege Log Doc No. 55 (). The Parties have provided little explanation of Ms. Robertson's rolein the internal investigations. In addition to Ms. Robertson and Ms. Healy, several members of Defendants' human resources staff participated in matters concerning Mr. Koumoulis: Ms. Claudia Mellon ("Ms. Mellon"), Ms. Anna Orsenigo ("Ms. Orsenigo"), Ms. Kathy Bakke ("Ms. Bakke") and Ms. Sheila Hunter ("Ms. Hunter"). See Joint Letter Ex. C at Mellon 141:3-17.
Most of the communications on the privilege log include Ann Bradley, Esq. ("Ms. Bradley") of the law firm Duane Morris LLP. See Privilege Log. The pleadings and motions papers are silent as to precisely when outside counsel became involved in matters related to Mr. Koumoulis, but Ms. Bradley has been involved since at least May 21, 2008. See Privilege Log Doc. No. 30. Other than a few pages of deposition transcripts and what is apparent from the documents reviewed in camera, there is no evidence before this Court as to the intended scope or purpose of Ms. Bradley's involvement. See Joint Letter Ex. C at Mellon 136:4-22, 141:21-142:8 (Ms. Mellon consulted Ms. Bradley on the internal investigations); Joint Letter Ex. C at Bakke 234:9-25 (Ms. Bakke worked with counsel from Duane Morris LLP on a draft memorandum); but see Joint Letter 6 (contending that "outside counsel did not participate in...
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