Black Professor Can’t Access Law School Probe

PITTSBURGH (CN) - A black law professor suing the Duquesne University School of Law for discrimination cannot force the Association of American Law Schools to release documents about a recent "site visit" the group conducted at the school, a federal judge ruled.

Kellen McClendon had hoped to recover the documents for an underlying job-discrimination case in which he claims Duquesne created a racially hostile work environment and failed to consider him for an open dean position at the school.

Last week, U.S. District Judge Nora Barry Fischer said the professor had "failed to take advantage of the many opportunities he had" to recover the documents in discovery.

"Blame for this failure should not be placed at the feet of the defendants or AALS," Fisher wrote. "The court declines to compel disclosure of documents that could have been acquired in a cheaper, more expeditious manner at a much earlier date in this litigation."

McClendon's lawsuit claimed that Provost Ralph Pearson had referred to McClendon as a "token" and refused to consider promoting him because of his race, but President Charles Dougherty accused McClendon of making "baseless claims of racism." After McClendon filed a complaint with the Pennsylvania Human Relations Commission, the university allegedly retaliated against him by dropping any investigation into race discrimination.

McClendon moved to extend discovery to "depose the authors of the AALS report for the purpose, inter alia, of inquiring as to whether those authors received any information ... touching on racial discrimination in the course of their field work at the [Duquesne] law school," according to the court, which added the emphasis.

McClendon "was undoubtedly aware of his own role in the site visit" and "had ample opportunity - either during the administrative process or during the initial discovery period in this case - to obtain the information he sought," the judge wrote.

Fisher also said McClendon failed to properly address and deliver the subpoena for records. The subpoena was addressed to Susan Westerberg Prager as an individual and failed to identify her as a Duquesne University dean. "Moreover, the attempts at service were sloppy, at best," Fisher wrote, with the process server apparently opting to "dump" the subpoena on Prager's desk instead of delivering it personally.

McClendon had also requested one document that "is wholly irrelevant as it makes no reference to anything remotely resembling discrimination or race," Fisher wrote, adding that his "remaining requests are overbroad."

McClendon "clearly exceeded the scope of discovery allowed by the court's order extending discovery," the 14-page decision states. "Moreover, there is no prejudice to plaintiff in denying his motion to compel because plaintiff, had he been diligent, could have secured these documents during the several months this court allowed for discovery at the beginning of this litigation."

McClendon "already has, or should already have, many of the documents he seeks, making his request for same unreasonably duplicative," Fisher wrote.

The chief of the site team that produced the report, named as Professor Rodriguez, even "filed a declaration with this court, wherein he explicitly stated that all the information pertaining to potential discrimination was submitted by [professor McClendon] and one other African-American faculty member - Professor [Vanessa] Browne-Barbour," Fisher wrote. "Professor Rodriguez's conversation with [McClendon] and Browne-Barbour, and the documents supplied by those two parties, are the only instances in which racial issues were raised during the site visit."

Rodriguez and Professor Mildred Robinson, who is also black, "were both sensitive to diversity issues during the course of their review," Fisher added. "In Professor Rodriguez's own words: 'If I had sensed any merit to allegations of racial discrimination, I would have brought them to the attention of AALS and these concerns would have been prominently aired in the Special Site Visit Report. I found no such merit to the few allegations voiced by the two minority faculty members referred to above."

Fisher concluded that McClendon can obtain many of the documents in a "more convenient, less burdensome, or less expensive" manner, since his own documents are probably in his personal computer or filing cabinet. Likewise, a "simple phone call would presumably be sufficient" for McClendon to acquire certain copies of his co-worker's documents.

"While plaintiff may have to pay for a long distance phone call and shipping costs, these means of informal discovery are significantly less costly than formal discovery and motions before this court," Fisher wrote. "Nothing impedes such informal discovery and investigation."

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