The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
On October 27, 2011, Fitzgerald registered a laundry list of Defendants' discovery deficiencies in responding to his Demands, chief among them is the response to Fitzgerald's request for the Internal Affairs file of Troy Police Officer Stephen Seney. Dkt. No. 76, Pl.'s Lt.-Mot., dated Oct. 27, 2011, at pp. 2-3. The abridged rendering as to why Fitzgerald seeks Seney's Internal
Affairs file is stated as follows:
Officer Fitzgerald was relieved of duty, prohibited from having access to the Police Department building, and had his gun, badge, and Police Officer status taken away because he allegedly threatened Police Officer Stephen Seney with violence. Officer Seney was, within a year thereafter, alleged to have threatened violence against his wife and an Internal Affairs Investigation was conducted . . . . Plaintiff [seeks] . . . the file of that investigation including the statements of Officer Seney and his wife . . . . Plaintiffs believe that these documents could lead to the discovery of admissible evidence regarding 1) whether Seney's threats of violence were treated differently than Officer Fitzgerald's; and 2) Seney's alleged sensitivity to the alleged threats of violence made by Officer Fitzgerald and as such, whether Seney had a different motive . . . in complaining to Mayor Tutunjian about the alleged threats by Officer Fitzgerald.
The Defendants refuse to disclose Seney's Internal Affairs file because such materials are not reasonably calculated to lead to the discovery of admissible evidence, and are protected by the law enforcement privilege and otherwise confidential pursuant to New York Civil Rights Law § 50-a.
In a subsequent filing, Fitzgerald modifies his reasons for seeking Seney's Internal Affairs file and additionally argues that such information may lead to admissible evidence of disparate treatment of employees who engaged in similar conduct. Dkt. No. 78, Pl.'s Lt.-Br., dated Nov. 15, 2011. Where a party charges that he was retaliated against, "[t]he causal connection between the protected activity and the adverse employment can be established indirectly with the circumstantial evidence, for example . . . through evidence of disparate treatment of employees who engaged in similar conduct[.]" Summer v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990); see also Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005). Apparently, the gist of Fitzgerald's argument is that he was treated less favorably by the Defendants than Seney and accordingly Seney's Internal Affairs file will or should confirm the disparity.
A Discovery Hearing which involved this issue was held on October 28, 2011. Because this Court agrees with the overall policy promulgated in New York's Civil Rights Law § 50-a, that law enforcement personnel files, especially internal affair files, are classified as either privileged or confidential, this Court directed the Defendants to produce the file for an in camera review as to relevance. Dkt. No. 77, Disc. & Sch. Order, dated Oct. 28, 2011, at p. 2. After yet another Discovery Hearing, which was held on November 16, 2011, wherein the dynamics of disparate treatment as it may apply to discovery in this case were argued, the Court issued an Order permitting the parties to more fully develop their arguments in their respective subsequent letter-briefs. Text Order, dated Nov. 16, 2011. Seney's Internal Affairs file was delivered to our Chambers on November 18, 2011, and the parties' respective Letter Briefs were filed shortly thereafter. Dkt. Nos. 80, Pl.'s Lt.-Brief, dated Nov. 21, 2011, 84, Defs.' Lt.-Br., dated Nov. 29, 2011.
Fitzgerald claims that there are "large differences" between how the Defendants, particularly Defendant Tutunjian, "reacted" to Officer Seney's conduct, when compared to how they reacted to the alleged conduct of Fitzgerald. Dkt. No. 80 at p. 1. Essentially, however, the primary and distinguishing point made by Fitzgerald is the purported role that Defendant Tutunjian may have played in his investigation and the alleged adverse employment action. Id. at p. 2 (providing an outline of Tutunjian's acts relative to Fitzgerald). On the other hand, the Defendants assert that the submitted documents do not reveal that the Seney Investigation was handled materially disparately to Fitzgerald's Investigation. Dkt. No. 84 at p. 1. Morever, the Defendants note that the City of Troy's General Order No. 03.02 permits an internal affairs investigation to be conducted at the discretion of the Chief of Police and that "an officer may be reliev[ed] from duty when it appears that such action is in the best interest of the department[.]" Id. at p. 1; Dkt. No. 84-1, Gen. Order No. 03.02 at pp. 2-3.*fn1
In terms of searching for admissible evidence of possible disparate treatment, especially when the claim of disparity centers around the possible involvement of the Defendant Mayor in the disciplinary process, patrolling through a single privileged and confidential police officer file is not the best nor most fruitful approach. Nor should confidentiality be set aside solely for this reason when such relevant information of potential disparate treatment can be gleaned from far better sources than a single disciplinary file. If the issue of disparate treatment, again particularly in terms of Defendant Tutujian's role, is so central to establishing that the alleged adverse employment action was retaliatory, then that information should have been asked directly of Tutujian and the other Defendants rather than asking this Court to lay bare an individual officer's confidential internal affairs file to support such a proposition. And, it would be a true leap of faith to presume that a single confidential disciplinary file could ever provide such a revelation of disparate treatment in lieu of seeking the exact same information from those who are better informed on such a proposition and possibly through a well considered interrogatory. An internal affairs file should not be disclosed solely for a reason such as this and a court should strongly consider other more reasonable options to unearthing such claims without dispensing with statutory and collectively bargained privileges and allowing a party to wade through a confidential personnel file. See Dkt. No. 84-1, General Order 03.02. For this reason, the Court denies Fitzgerald's request.
Nonetheless, there exists other bases for denying the relief. The Court's review of Seney's Internal Affairs files does not, as Fitzgerald claims, indicate any "large differences" between their respective investigation and alleged adverse employment action, and there is no "material" disparity between how the two were treated that could give rise to such a claim. McGuiness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001) (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) for the proposition that to show disparate treatment of similarly situated employees, it must be material in all respects); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (confirming the "all material respects" standard for disparate treatment claims). For the most part, rather than there being "large differences" in the way these two employees were treated, the differences identified by Fitzgerald as being disparate are, in fact, either immaterial or solely idiosyncratic. The only claimed difference between the two, whether it is material or not, is that Mayor Tutunjian may have interposed himself into the initial stages of Fitzgerald's investigation. Again, this point alone should not permit a piercing of protected and privileged materials when there is a less circuitous route to relevant information that is calculated to lead to admissible evidence.
Furthermore, the Court finds that peeling back these privileges and exposing the contents of Seney's file is not calculated to lead to admissible evidence.
But, more revelatory and extremely curious, is that Fitzgerald and his current counsel are both keenly aware of nearly every fact and nuance of the Seney investigation based upon their personal participation therein. They know or should know (1) exactly what Seney was accused of doing, (2) the nature and the extent of his suspension from duty, (3) that Seney was relieved of his firearm and badge, (4) the misconduct charges that were lodged against him, (5) that the investigation lasted nearly a year, (6) that he was directed to undergo a psychiatric examination, and (7) the agreed upon disposition of the charges. They know or should know these things because they represented Seney throughout his entire ordeal and strongly advocated on his behalf.*fn2 On their face, the above listed employment actions appear to be materially similar as to what Fitzgerald claims happened to him, with some minor nuances, and, if there was a perceived disparity in the final outcome, Fitzgerald's and his Counsel's participation on Seney's behalf may have generated it. In fact, it could be argued that Seney's outcome may have been more worse than Fitzgerald's.
In any event, since Fitzgerald already knows or should know all of this, there is no need to pry through Seney's Internal Affairs file and roam in the shadow zones of relevancy to explore matters which do not presently appear ...