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Ebbert v. Nassau County

March 2, 2007

HELEN EBBERT, PAMELA EDWARDS, ISABELLA MINNECI, WENDY MURO, AND FRANCES KAMERER, AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NASSAU COUNTY, NASSAU COUNTY POLICE DEPARTMENT, NASSAU COUNTY CIVIL SERVICE COMMISSION, THOMAS R. SUOZZI, IN HIS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

MEMORANDUM AND ORDER

I. BACKGROUND

Plaintiffs in this case, Nassau County Police Communication Operators ("PCOs") and Police Communication Operator Supervisors ("PCO Supervisors"), commenced this action seeking injunctive relief and money damages on a variety of federal and state law claims relating to their employment. In particular, Plaintiffs allege violations of (a) the Equal Pay Act, 29 U.S.C. §§ 206(d) et seq., (b) the New York State Equal Pay Act, and (c) New York Labor Law. The heart of Plaintiffs' Equal Pay Act claim goes to their argument that they are being paid substantially lower wages for similar work being done by Fire Communication Technicians I ("FCT I") and Fire Communication Technicians II ("FCT II"). Defendants, on the other hand, contend that FCT I and FCT II positions are not substantially similar to PCOs and PCO Supervisors in the actual work performed.

Presently before the Court are several discovery motions. Plaintiffs have demanded production of the entry level examinations for PCOs and FCT Is. Defendants seek a protective order, arguing, among other things, that the release of these examinations will threaten the integrity of future examinations. In addition, non-party New York State Department of Civil Service ("NYSCS"), which was served with a subpoena by Plaintiffs, seeks to quash the subpoena (a) because it calls for production of documents purportedly protected by the deliberative process privilege, and (b) to the extent that it calls for the deposition of New York State Civil Service Commissioner Wall, whom NYSCS claims possesses no unique information regarding the topics set forth in the subpoena.

II. THE PARTIES' CONTENTIONS

A. Motion for Protective Order Regarding PCO Competitive Examination

PCOs and PCO Supervisors are employed by Defendant Nassau County (the "County") and are assigned to the Police Communications Bureau. FCT Is and FCT IIs are also employed by the County and are assigned to the Office of the Nassau County Fire Marshall at the Communications Center of the Bureau of Fire and Rescue Services. Although Plaintiffs assert that these positions involve substantially similar work, Defendants maintain that the positions are not substantially similar and that the related positions of PCO and FCT I as well as PCO Supervisor and FCT II are paid the same.

The record here discloses that the entry level test for PCO positions is maintained and administered by the Nassau County Civil Service Commission. The civil service examinations for the positions of FCT I and FCT II are created and maintained by NYSCS.

According to Defendants, the examination questions and related materials requested in Plaintiffs' document demands are not relevant to this litigation because the alleged discrimination is based upon Plaintiffs being paid a substantially lower wage for substantially similar work. Moreover, Defendants claim the tests are unrelated to the grade, step and salaries of persons appointed to the titles at issue. In fact, Defendants argue that civil service examinations are used only to determine an applicant's merit and fitness for appointment to a title, and that the test is only one of several factors used in making that determination. Defendants also note that there is not a single mention of the competitive examination in the Complaint and no allegation has been asserted by Plaintiffs that the examination questions have any discriminatory impact on them.

In seeking a protective order, Defendants rely upon the Court's discretion under Fed. R. Civ. P. 26(c) to preclude such production where the burden outweighs the benefit -- asserting here that the burden of adverse consequences to the Defendants if this sensitive information is disclosed (although admitting that such material is not privileged) outweighs the benefit to Plaintiffs. Defendants also rely upon 4 NYCRR §§ 70.1 through 70.4, and particularly § 70.2 which states that "[c]opies of questions used in examinations shall not be furnished except in cases there they are published by the department for general information." Finally, Defendants cite New York Public Officers Law § 87(2)(h) which prevents the dissemination of "examination questions or answers which are requested prior to the final administration of such questions." According to the County, grade, step and salary determinations are made by the Nassau County Civil Service Classification Unit based upon the duties attached to a position and the complexity of those duties, not upon examinations. As such, the County argues, even if the PCO and FCT I tests were the same or similar, that fact would have no impact on this litigation because the tests are not determinative and therefore should not be disclosed.

Plaintiffs contend, however, that the discovery rules are liberal and that no privilege attaches to the documents at issue. Moreover, Plaintiffs assert that since they are requesting examinations previously administered, such tests are not protected by the New York Civil Service Law. Plaintiffs also argue that their expert witness needs these documents and have provided an affidavit from the expert to this effect. The expert avers that in order to conduct a full job analysis, the qualifying examinations are important to demonstrate the skills for which the employer tests, thereby indicating the skills the employee deems to be important for the job. See Affidavit of Kathleen K. Lundquist (attached to Plaintiffs' opposition papers), DE 27-1, at ¶ 4. Plaintiffs' counsel argues that this information is essential because in order to prove a violation under the Equal Pay Act, Plaintiffs must show that the analyzed jobs are substantially similar in terms of skill, effort and responsibility.

Relying upon Defendants' statements to the New York State Division of Human Rights during the administrative proceeding precedent to this lawsuit, Plaintiffs point out that in response to Plaintiff Muro's discrimination charge, the County argued that evidence of the difference in the jobs was reflected by the different written entrance examinations administered by the County. According to Plaintiffs, the County spent significant time detailing how the PCO exam is different from the FCT test. Consequently, Plaintiffs argue, they should be permitted to test this assertion. Likewise, Plaintiffs maintain that Public Officers Law § 87(2)(h) is not relevant here because the statute is limited to FOIA requests which involve disclosure of information to the general public.

As to the "final administration" issue raised by the County, Plaintiffs contend that since they are only seeking "prior exams which have been finally administered" and not ones "that are going to be given in the future," the request falls outside the prohibition of Rule 70.2. Plaintiffs offer their willingness to enter into a restricted Confidentiality Agreement with the County regarding the examination materials.

B. Non-Party Motions to Preclude Commissioner's Deposition and for Protective Order Regarding FCT Competitive Examination

On November 22, 2006, Plaintiffs served non-party NYSCS with a subpoena, seeking

(a) the production of Civil Service Commissioner Wall for a deposition in December 2006; (b) the production of copies of all examinations as used by Nassau County for employment as a Fire Communications Technician ("FCT"); (c) copies of any and all documents used and/or relied upon to develop the examinations used for the Nassau County FCT position; and (d) copies of all validation studies conducted in reference to the Nassau County FCT examination and/or salary grade classification. NYSCS objected to the subpoena via letter dated December 1, 2006 and now moves to quash the subpoena and for a protective order under Fed. R. Civ. P. 26(c) seeking to (a) preclude the production of such documents in response to the subpoena which are deemed overly broad and protected by the deliberative process privilege; (b) preclude production on the grounds that the requested documents lack relevance to the issues in this litigation; and

(c) preclude the deposition of Commissioner Wall on the grounds that Plaintiffs have not demonstrated that Commissioner Wall possesses unique information that cannot be obtained from any other source.

Although Plaintiffs requested examinations and related materials from non-party NYSCS for 2002, 1999 and 1994, NYSCS claims that it is not in possession of examinations for 1994 and 1999, but has requested these documents from the New York State Archives which is conducting a search. Notwithstanding the search, NYSCS maintains that the examination questions themselves are entitled to protection because their disclosure would impair the ability of NYSCS to use these same questions in any future examinations. According to NYSCS,

[t]he examination questions are not circulated publicly and are frequently utilized again on subsequent examinations. Thus, release of the examination questions to plaintiffs would invalidate their use in other examination and require substantial work and expense on the part of NYSCS to promulgate new questions. Civil service examination questions are not "finally administered" after their use in an examination and moreover are excluded from disclosure by the Truth in Testing Law (Education Article 7-A). Further, the determination of "finally administered" rests with the administering agency [citations omitted].

NYSCS December 4, 2006 letter motion, at p. 2.

With regard to the subpoena for Commissioner Wall's testimony, NYSCS states that Plaintiffs have not demonstrated, as they are required to do, that the Commissioner has unique information relevant to this lawsuit that cannot be obtained elsewhere. In fact, NYSCS argues, other staff members of NYSCS are more knowledgeable regarding the communications and interactions with Nassau County officials pertaining to the preparation of the examination questions than the Commissioner himself. Further, NYSCS states that pulling ...


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