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Duck v. Port Jefferson School Dist.

May 14, 2008


The opinion of the court was delivered by: Spatt, District Judge



The plaintiff, Joyce Duck ("Duck"), moves pursuant to FED. R. CIV. P. 72(a) to object to the denial of her motion to compel discovery by United States Magistrate Judge William D. Wall. The plaintiff seeks discovery ofthe personnel files of certain employees and the former Superintendent of the Port Jefferson School District.

This action arises out of the plaintiff's employment as a physical education instructor at the Port Jefferson School District (the "District"). The plaintiff's main contention is that she was denied the opportunity to coach the Port Jefferson Middle School Girls Field Hockey Team as a result of discrimination on the basis of her age and gender in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII, and 42 U.S.C. § 1983.

The plaintiff states that since her employment with District began in 1971, she was largely responsible for the development of intramural and interscholastic girls athletic programs. In addition, she states that during her tenure she coached a variety of girls sports teams. Duck retired from teaching in June of 2002. In September 2004, she received a call from an Assistant to the Varsity Field Hockey Coach advising her of an open position as coach of the Middle School Girls Field Hockey Team. Duck alleges that she agreed to take the position, but when then Superintendent Reilly refused to recommend her, she was denied the position. The defendants contend that Duck was not discriminated against. Instead, they assert that she was not awarded the position because she did not formally apply; preference must be given to teachers already employed by the school District, and Britt and Pennino, the persons receiving the position that Duck sought had already been recruited by the District.

The defendants have provided a list of coaching staff for the 2004/05 school year and the plaintiff now seeks the personnel files of ceratin coaches employed by the District. The plaintiff contends that these personnel files are discoverable as they belong to employees similarly situated to the plaintiff because the individuals (1) held or applied for the coaching position in question; (2) are retired male coaches who were allowed to coach; (3) and/or are out of district male personnel who were offered coaching positions.

On September 13, 2007, Judge Wall adopted a discovery plan that contemplated completion of all discovery by June 30, 2008 and a final pretrial conference before him on July 22, 2008. On December 7, 2007, Duck moved to compel the production of the personnel files for the above categories of individuals. In her motion, the plaintiff represented that she offered to enter into a confidentiality agreement with respect to the information contained in the personnel files, but the defendants rejected this remedial measure.

On December 19, 2007, Judge Wall held oral argument on the plaintiff's motion. At the hearing, Judge Wall denied the motion to compel "to the extent that the personnel files demanded are protected from disclosure." (Discovery Order, December 19, 2007). The plaintiff filed the present motion pursuant to FED. R. CIV. P. 72(a), objecting to Judge Wall's ruling.

The defendants contend that Judge Wall properly excluded discovery of these documents because the employees whose personnel records the plaintiff seeks are not similarly situated to the plaintiff, and, therefore, are not proper comparators to her. The defendants assert that the only people similarly situated to the plaintiff would be those employed by the District for the sole purpose of coaching a middle school team. Even then, the defendants assert, the class of people similarly situated to the plaintiff would be those who obtained the position years after retirement and without formally applying. Therefore, the defendants contend that Judge Wall committed no legal error when he determined that the documents requested were not relevant.


The district court may reconsider a magistrate judge's decision on a pretrial matter only "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a). A finding is clearly erroneous if "the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); United States v. Isiofia, 370 F.3d 226, 232 (2d Cir.2004). An order is contrary to law "when it fails to apply or misapplies relevant statutes, case law, or rules of procedure." Catskill Dev., L.L.C. v. Park Place Entrn't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.2002) (citation omitted). "Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused." Universal Acupuncture Pain Servs., P.C. v. State Farm Mut. Auto. Ins. Co., No. 01CV7677, 2002 WL 31309232, at *1 (S.D.N.Y. Oct.15, 2002) (citing Lanzo v. City of New York, No. 96CV3242, 1999 WL 1007346, at *2 (E.D.N.Y. Sept. 21, 1999)). A party seeking to overturn a discovery order therefore bears a heavy burden. See Com-Tech Assocs. v. Computer Assocs. Int'l, 753 F.Supp. 1078, 1098-99 (E.D.N.Y. 1990), aff'd, 938 F.2d 1574 (2d Cir. 1991).

To be discoverable, the information a party seeks must be "relevant to any . . . claim or defense" but "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." FED. R. CIV. P. 26(b)(1). However, the broad reach of discovery is not without limits and the court will dissallow requests where: "(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." FED. R. CIV. P. 26(b)(2)(c). "Thus, the first step in the process is deciding whether the requested material is discoverable, that is, whether it is relevant and not privileged. If it is, the Court still has considerable discretion to evaluate the practical realities of discovery, balancing the importance of the information against the burdens of production to decide whether fairness does or does not require production, and if so, on what terms." Jones v. Goord, 95CV8026, 2002 WL 1007614, at *6 (S.D.N.Y. May 16, 2002).

In Hollander v. American Cyanamid Co, 895 F.2d 80 (2d Cir. 1990), an ADEA age discrimination case, the Second Circuit reversed the district court's grant of summary judgment in favor of the defendant because of an earlier erroneous discovery ruling. During the discovery phase of the case, the district court refused to compel the defendant to respond to an interrogatory requiring identification of all management level employees over forty years old whose employment was terminated. Hollander, 895 F.2d at 82. The defendant objected to the interrogatory on the basis that it was vague and overbroad, seeking information pertaining to management employees throughout the company, and not only those working at the same facility as the plaintiff. Id. at 84. The district court upheld the magistrate judge's finding that further discovery would be burdensome and irrelevant. Id.

The Second Circuit held that the plaintiff's discovery request was reasonable as it sought information regarding the termination of similarly situated persons-management personnel over the age of forty. Id. Importantly, the court noted that "an individual disparate treatment plaintiff may use statistical evidence regarding an employer's general practices at the pretext stage to help rebut the employer's purported non-discriminatory explanation" for employment action. Id. Also, the court found that the district court's discovery decision "deprived [the plaintiff] of evidence potentially helpful to his attempt to assemble such a quantum of circumstantial evidence supporting his argument of pretext." Id. at 85; see also Jhirad v. TD Securities USA, Inc., 02CV7509, 2003 WL 1872654, at *2 (S.D.N.Y. April 10, 2003) ("The [Hollander court] held that company-wide demographic information might be relevant to show that defendant's non-discriminatory reasons for plaintiff's termination were pretextual."). Therefore, the court found that the plaintiff should have been entitled to the discovery he sought and reversed the district court's grant of summary judgment in favor of the defendant. Hollander, 895 F.2d at 85--86.

However, "Hollander is not the Circuit's last word on the use of 'other-act' or statistical evidence in discrimination cases. The Circuit has noted . . . that the comparisons underlying claims of disparate treatment must be carefully drawn."

Jhirad 2003 WL 1872654, at *4 (citing Smith v. Xerox Corp., 196 F.3d 358, 370--71 (2d Cir.1999) for the proposition that because intent is a critical issue in employment discrimination cases "'only a comparison between persons evaluated by the same decision-maker is probative of discrimination.'").

In addition, in Graham v. Long Island Rail Road, 230 F.3d 34 (2d Cir. 2000), the Second Circuit explained that one method by which the plaintiff may raise an inference of discrimination is to show that she was treated less favorably than similarly situated employees outside of her protected class. See Graham, 230 F.3d at 39. The court provided guidance on when employees are similarly situated, stating that the plaintiff must establish that she was "similarly situated in all material respects to the individuals with whom she seeks to compare herself." Id. (internal quotations and citation omitted).

The Graham court explained that the district court should make an independent determination as to which factors are relevant to the determination of similarity among employees, stating that "what constitutes 'all material respects' . . . must be judged based on . . . whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards . . . . Hence, the standard for comparing conduct requires a reasonably close resemblance of the facts and ...

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