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Boyer v. Riverhead Central School Dist.

March 7, 2007


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



This is an age discrimination case brought under the Age Discrimination in Employment Act (ADEA), codified at 29 U.S.C. §§ 621-34 and NYS Executive Law § 296(6). Plaintiff alleges that on August 22, 2002 she, along with seven other candidates, was interviewed by the Riverhead Central School District for three available music positions. See Compl. ¶ 13. At the time of the interview, Plaintiff was 61 years of age. See id. In their Answer, Defendants "deny knowledge or information sufficient to form a belief" as to this allegation. See Ans. ¶ 4. They generally deny any claim that they discriminated against Plaintiff and state that "all actions undertaken by Defendants, with respect to Plaintiff were undertaken for non-discriminatory reasons." See Ans. ¶ 16.

The allegations set forth in the Complaint do not contain any specific facts about the interview process other than that Plaintiff was "asked to provide dates as to her prior employment." Compl.¶ 21. On August 26, 2002, Plaintiff was notified that she was not hired for any of the positions. See Compl.¶ 22. Plaintiff alleges that she was not only more qualified than those who received offers, but more qualified than all other candidates who interviewed for the position. See Compl.¶¶ 16-17.

Defendants now contend that Plaintiff did not apply for all three available teaching positions, but rather only for the elementary school music teacher position at Pulaski Street Elementary School. By letter motion, Defendants move for a protective order limiting discovery to the single elementary school music teacher position offered at Pulaski Street Elementary School [DE 25]. In support of their application, Defendants have provided the Affidavit of David Loddengaard,*fn1 head of the music department for Riverhead Central School District and documentary evidence in the form of a July 21, 2002 advertisement for "General Music/Vocal and/or Strings (Elementary)" and Plaintiff's August 22, 2002 job application. Plaintiff's counsel filed opposition which includes the transcript of Plaintiff's testimony taken on February 14, 2003, pursuant to N.Y. General Municipal Law § 50(h),*fn2 as well as certain documentary evidence and pedigree information which appear to have been marked for identification and used as exhibits at Plaintiff's § 50(h) hearing. Notably, with the exception of two cases cited by Plaintiff's counsel, the parties have provided no caselaw to support their respective positions.

After carefully reviewing the materials submitted and for the reasons set forth below, Defendants' motion for a protective order is DENIED.


Upon motion Fed. R. Civ. P. 26(c)(4) permits the Court to issue a protective order limiting the scope of discovery or disclosure. See United States v. New York City Bd. of Educ., No. 96-CV-374, 2005 WL 1949477, at *1 (E.D.N.Y. Aug. 15, 2005). Specifically, Rule 26(c)(4) provides,

Upon motion by a party or by the person from whom discovery is sought... the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following... (4) that certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters.

Fed. R. Civ. P. 26(c)(4).

In deciding whether to issue a protective order, courts utilize a two-part balancing test. Apex Oil Co. v. DiMauro, 110 F.R.D. 490, 496 (S.D.N.Y. 1985) (citing Kaufman v. Edelstein, 539 F.2d 811, 821 (2d Cir. 1976)). Under the rubric of this balancing test, the discovering party's need for the information is balanced against the moving party's potential injury in having that information disclosed. See Apex Oil Co., at 496 (citing Buckley v. Valeo, 424 U.S. 1, 64-65, 96 S.Ct. 612, 656-659, 46 L.Ed.2d 659 (1979)).


Defendants argue that Plaintiff should not be permitted to obtain discovery to support her allegation that she applied for three music positions which were available in the Riverhead Central School District during the summer of 2002 because the end result "would amount to a fishing expedition." [DE 25] Additionally, defense counsel notes that "no proof has been offered by the Plaintiff that she was qualified for these positions or that anybody at anytime indicated to Ms. Boyer that her interview on August 22, 2002 was for more than one (1) position with Riverhead." Id. In opposition, Plaintiff's counsel argues that Defendants' attempt to limit discovery of items Plaintiff needs to prove her case at this early stage of the litigation is improper. Plaintiff notes that Defendants' motion "is an attempt at the equivalent of a summary dismissal before a summary judgment motion is even proper." [DE 29]

In his Affidavit, Lodengaard states that "in the summer of 2002, three (3) music positions were available in the music department at Riverhead." Lodengaard Aff. ¶ 3. The three positions were "middle school teacher (band), middle school music teacher (chorus) and elementary school music teacher at Pulaski Street Elementary School. Id. Lodengaard states that he scheduled "separate interviews on different days and at different locations of those individuals" he believed were "qualified for each of the aforementioned positions." Id. Lodengaard states that at no time did he set up an interview for Plaintiff for either the middle school teacher (band) or the middle school music teacher (chorus) positions. Lodengaard Aff. ¶ 3. Lodengaard adds that in the summer of 2002, the personnel department at Riverhead placed an advertisement in The New York Times for the position of elementary school music teacher at Pulaski Street Elementary School. Lodengaard Aff. ¶ 5. Defendants' counsel provided a copy of this advertisement which states in pertinent part that "Riverhead Central School District has ...

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