Former Council Clerk’s Discrimination lawsuit against Town of Front Royal continued on dueling motions filings

The discrimination lawsuit against the Town of Front Royal filed by former council clerk Jennifer Berry Brown will not take place next month in the U.S. District Court for the Western District of Virginia in Harrisonburg, as scheduled. Slated for May 31-June 3, the civil jury trial initially was set to begin on February 22, 2022, before being continued to May 31.

U.S. Judge Thomas T. Cullen has opted to continue the trial after both parties filed motions on March 14 that must be heard before the case proceeds. The Town filed a motion for summary judgment and Berry Brown filed a motion for partial summary judgment; the court scheduled both motions for a hearing on April 25.

Ms. Berry Brown filed a civil complaint in federal court on Jan. 4, 2021, claiming sexual harassment by former Front Royal elected officials and wrongful termination from her job as clerk of council as retaliation.

Berry Brown is being represented by Harrisonburg attorneys Timothy E. Cupp and Tim Schulte. Fairfax attorneys Heather K. Bardot and Julia B. Judkins represent the Town of Front Royal; Andrew S. Willis and John B. Mumford Sr., of Glen Allen, represent the Virginia Risk Sharing Association (VRSA), named as a second respondent to the complaint.

Berry Brown’s attorneys filed a motion on March 14 for partial summary judgment against the Town, asking the court to rule in her favor “on the issue of liability on that portion of Count II of her Complaint arising from the Town’s failure to offer her the position of Public Information Officer (“PIO”) in retaliation for her having engaged in protected activity under Title VII.” (Title VII of the Civil Rights Act of 1964 protects against retaliation for lodging harassment claims.)

In support of the request, Berry Brown’s attorneys cite 33 evidence exhibits, including deposition testimony from town council members, former Mayor Hollis Tharpe, former councilman William Sealock, former Human Resources Director Julie Bush, and emails related to the VRSA opinion regarding Ms. Berry Brown’s harassment claim. The court has sealed some documents submitted as evidence exhibits, including email conversations amongst town officials and some depositions of potential witnesses.

Berry Brown also asks the court, should it grant the motion for partial summary judgment, that the balance of the issues in the case move to trial.

The Town of Front Royal filed a motion for summary judgment to dismiss the case against the Town of Front Royal on the grounds that “the Town lacks control over the elected officials about whom Berry complains or their decision to terminate her.”

The defense motion also states that Berry Brown’s evidence does not establish a claim of discrimination based on sex in violation of Title VII. The defense further states that the evidence does not establish claims of retaliation in violation of Title VII, retaliatory hostile work environment or a violation of the Family Medical Leave Act.

On March 28, Berry Brown filed a motion under the Federal Rule of Civil Procedure to defer ruling on the Town’s motion for summary judgment until the court resolved her motion to compel certain discovery materials.

On March 31 the presiding judge, Magistrate Judge Joel C. Hoppe, entered an order granting in part and denying in part Berry Brown’s motion to compel. Berry Brown filed the motion to compel on November 5, 2021, requesting that the court compel the Town to produce any files maintained by the outside counsel it retained during the investigation of Berry Brown’s harassment claims.

She also asked the court to compel certain deponents to “answer questions regarding the communications between them and outside counsel in connection with the investigation of Berry Brown’s complaints of harassment and retaliation; the involvement of outside counsel in the retaliatory adverse actions against Berry Brown; and the termination of her employment.”

Judge Hoppe’s Order concluded that the Town waived its attorney-client privilege regarding “the investigation of Berry Brown’s complaints of harassment, outside counsel’s conclusions from the investigation, and outside counsel’s advice about any remedial measure taken in response to the alleged harassment” and compelled the Town to produce discovery regarding the same.

However, the Order does not compel the Town to produce any discovery related to outside counsel’s advice regarding the decision to terminate Berry Brown, finding that the Town did not waive its attorney-client privilege regarding that issue.

The court on Wednesday held a status conference with both parties to determine the status of Berry Brown’s motion and how to proceed with the impending hearing on the motions for summary judgment. The Town indicated it would file objections to Judge Hoppe’s Order. Berry Brown represented that she has not yet decided whether she will file objections.

The court ordered that if the parties wanted to file objections, they must meet a 5 p.m. April 14, 2022, deadline. If the opposing party wishes to file a response, that must be done within seven days of the date objections are filed.

A date for the civil jury trial has not yet been determined, though based upon proceedings thus far, it is not likely to be resolved soon.