The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
MEMORANDUM OPINION and ORDER
The defendants, Western Suffolk Boces, and the individual defendants, Helen Boggs Smith and Bob Boonan, move to compel responses to deposition questions which the pro se plaintiff, Charles W. Jones, refused to answer on the ground that any such response was prohibited under a confidential agreement with the Bay Shore Union Free School District and others, dated November 15, 1985. There is no dispute as to the existence of such an agreement and the prohibition on which plaintiff relies.
The defendants fail to provide the court with a copy of the deposition transcript to enable the court to review the questions. Instead, the ruling is sought based on an allegation by defendants' counsel, Anna M. Scricca of the firm of Ingerman Smith, LLP, in the supporting affidavit stating that "I asked the Plaintiff about the circumstances leading to his resignation from the Bay Shore Union Free School District, which occurred in 1985, including the allegations of sexual misconduct which, upon information and belief, had been reported by female students or their parents to the Bay Shore Union Free School District." (Affidavit of Anna M. Scricca, in Support of Motion to Compel Answers to Depositions Questions, dated September 22, 2006).
Attached to the movants' motions papers is a 15-page Settlement Agreement, dated November 15, 1985, between the Bay Shore Union Free School District, the pro se plaintiff herein, and certain students at the school whose names have been redacted presumably due to their age. The stipulation is captioned "In the matter of the charges involving certain alleged acts of misconduct committed by CHARLES JONES, a coach employee of the BAY SHORE UNION FREE SCHOOL DISTRICT." There is no indication from the document that the alleged "misconduct" is sexual misconduct as claimed by defendants' counsel. See unidentified exhibit annexed to movants' motion papers. The administrative proceeding was presided over by a hearing officer identified in the transcript; separate counsel appeared on behalf of all the parties involved.
As the pro se plaintiff contends in opposition to the request, the 1985 stipulation incorporates the agreement, signed by all the parties, to discontinue the complaint, and in relevant part provides, that (1) the "records involving these charges are to be held in confidence by the school, and are not to be divulged except as may be required by law;" (2) that the charges are withdrawn and it is "acknowledged by all the parties that Mr. Jones has denied any wrongdoing, and has maintained his innocence regarding these charges, and that this settlement is made without any prejudice to Mr. Jones, and without any acknowledgment of any guilt on his part"; (3) that Mr. Jones "acknowledges that he had only been retained as a part-time seasonal coach, and that he had no claim to continuing or future employment with the District" and "he agrees to resign effective June 30, 1985 and not to seek or accept future employment with the District;" (4) that the complaining witnesses withdraw all charges with the understanding "that this matter is to be settled permanently" . . . and "they agree [to] neither directly or indirectly . . . repeat these charges or circulate these charges, or to discuss these charges in the future. . . ."
[a]nd "agree to dismissing these charges final (sic) and releasing Mr. Jones from any claim evolving from these charges;" and (5) "Mr. Jones agrees similarly not to discuss these charges, or contact either (redacted student names) and agrees to release them of any claim that he may have arising out of the bringing of these charges." (Unmarked exhibit to movants' motion to compel at 161-164). (Emphasis added).
1. Discovery Not Relevant
The theory of the plaintiff's Second Amended Complaint is that he was hired by the defendant BOCES district some five (5) years later in 1990, as a School Social Worker and that he worked for the Western Suffolk BOCES ("BOCES") District for twelve (12) years as an exemplary worker and that it was because of his African American race that BOCES doggedly pursued the sealed settlement which occurred in the Bay Shore Union Free School District in 1985. Plaintiff claims that this investigation began in September 1996 after plaintiff claimed that a reassignment to a particular special education elementary school was motivated by his race. Except for the redacted 1985 Settlement Agreement, BOCES has been unsuccessful in obtaining any further information with respect to the underlying disciplinary charge dismissed and settled therein.
It is beyond dispute that BOCES and/or the individual defendants sought to obtain information from the Bay Shore Union Free School District - all to no avail. In fact, the Appellate Division, Second Department, reversed a judgment of the Supreme Court, Suffolk County (Tannenbaum, J.), dated July 2, 1997, which had directed the release of certain records held under seal by the Bay Shore Union Free School District in a special proceeding initiated by the defendant BOCES district herein. The pro se plaintiff was a respondent in that action. On appeal, the appellate court held: "The court erred in authorizing, pursuant to Public Officers Law § 87, release of certain pages of the sealed record on appeal filed herein which recite unproven disciplinary charges." (citations omitted). The court further noted that although BOCES "is entitled to a certain stipulation of settlement, the names of students and their parents mentioned therein should be redacted from the settlement transcript." (citations omitted). Matter of Western Suffolk Board of Cooperative Educational Services v. Bay Shore Union Free School District, 250 A.D.2d 772, 672 N.Y.S.2d 776 (Second Department 1998).
The defendants argue that the underlying incidents that are the subject of the 1985 settlement are "directly related to the Plaintiff's complaint." (Affidavit of Anna M. Scricca at ¶ 7). The defendants rely on specific portions of the second amended complaint that appear at pages 3-5 of the complaint.
The second paragraph of the complaint sets forth the plaintiff's position, as it relates to the issue before the court.
FACTS GIVING RISE TO PLAINTIFF'S CAUSE OF ACTION
The Plaintiff is an African American male who holds a Master's Degree in Social Work and at all times relevant was a certified Social Worker under the laws of New York State (CSW) and held a valid New York State Education Certificate since 1992. Plaintiff was hired by Defendant BOCES on or about September 1, 1990 as a School Social Worker, and became tenured as a School Social Worker on or about September 1, 1993.
At all times relevant hereto, approximately twelve years; and in all respects, Plaintiff performed his duties as a School Social Worker with BOCES, in a satisfactory, professional and exemplary manner. Plaintiff maintained ...