United States District Court, W.D. New York
WILLIAM F. ADAMS, Plaintiff,
BUFFALO PUBLIC SCHOOLS a/k/a BUFFALO PUBLIC SCHOOL DISTRICT, and PATRICK FISHER, Individually, Defendants.
HUGH B. SCOTT, Magistrate Judge.
Before the Court are two motions. First is plaintiff's motion to compel (Docket No. 20). Second is defendant Patrick Fisher's cross-motion for a protective Order (Docket Nos. 23, 31), and in part in opposition to plaintiff's motion to compel. Codefendant Buffalo Public Schools a/k/a Buffalo Public School District (hereinafter "BPSD" or "School District") did not file a motion and filed responses to plaintiff's motion (cf. Docket No. 37, defendant's response, filed under seal), with the School District's response being virtually identical to that of Fisher's (cf. Docket No. 24).
Responses to both motions eventually (cf. Docket No. 22) were due by April 17, 2014, with replies due April 24, 2014 (Docket No. 32). Oral argument was held on June 17, 2014 (Docket No. 45; see Docket Nos. 40, 43), and this Court reserved decision on these motions (Docket No. 45).
This is an action under Title VII, 42 U.S.C. §§ 2000, et seq., New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., and 42 U.S.C. § 1981, alleging discrimination based upon race (Docket No. 1, Compl.). Plaintiff is an African-American male who alleges that he was employed by defendant BPSD (id. ¶ 2). Plaintiff alleges that defendant Patrick Fisher "is a supervisor employed by Defendant BPSD to oversee janitorial services to certain schools and employees located within the City of Buffalo and its' school district, including School #43, " the school where plaintiff worked (id. ¶¶ 4, 5, 15). He alleges generally that Patrick was an "employee" as defined in relevant statutes and BPSD was an "employer" under those statutes (id. ¶¶ 7-8). He claims that Patrick not only supervised him but also governed "every aspect of his employment including scheduling, hours, payment of wages, and all other issues related to his employment" (id. ¶ 16).
Fisher answered (Docket No. 5), admitting that he was employed by BPSD and provided custodial services at School #43, but denied plaintiff's other allegations in paragraph 4 of the Complaint (Docket No. 5, Fisher Ans. ¶ 4) and denied that he was an employee under the relevant statutes (id. ¶ 7). He also denied plaintiff's assertion that he governed every aspect of plaintiff's employment (id. ¶ 16).
The BPSD separately answered (Docket No. 9; see also Docket No. 8, Ans. (unsigned by counsel)), admitting that it employed Fisher but "adamantly denies that Plaintiff is an employee" of the BPSD (Docket No. 9, Ans. ¶¶ 4, 2). The School District denied that Fisher was plaintiff's immediate and only supervisor and knowledge regarding how much of plaintiff's employment was governed by Fisher (id. ¶ 14). The School District also denied that it was an "employer" or that plaintiff and Fisher were "employees" under the statutes at issue (id. ¶ 6).
This Court next entered a Scheduling Order (Docket No. 14), which was amended on January 2, 2014 (Docket No. 16). The current schedule had discovery due to be completed by April 16, 2014, and motions to compel discovery due by March 17, 2014 (Docket No. 16). These deadlines were held in abeyance pending resolution of these motions (Docket No. 22).
Relevant Collective Bargaining and Other Agreements
Curiously, defendant Patrick Fisher is an employee of the BPSD (see Docket No. 24, Def. Fisher Atty. Aff. ¶ 12) and also is an independent contractor of the BPSD (id. ¶ 13) under the terms of the Master Contract, the collective bargaining agreement between BPSD and Fisher's union, Local 409, the International Union of Operating Engineers ("I.U.O.E.") (see id. ¶ 12, Ex. A, or the "Local 409 CBA"). In the midst of normal employment terms and conditions, this CBA has references to a separate agreement, a "custodial engineer contract" (id., Ex. A, Local 409 CBA Art. VI, Sec. J., ("Day School Services" definition), Art. IX, Sec. T (salary under custodial engineer contract)). Article VI of the Local 409 CBA defines "Day School Services" as
"custodial services required to keep school buildings open, safe, clean, heated and operating on school days and all other workdays between the hours of 7:00 a.m. and 5:00 p.m. for the Early Schedule Schools; 7:30 a.m. and 5:00 p.m. for the Middle Schedule Schools, and 8:00 a.m. and 6:00 p.m. for the Late Schedule Schools unless otherwise specified.
"Included are such services as are required prior to the day school sessions in order to have the school buildings heated, cleaned, and otherwise ready for use at the time of such day school sessions, and such further cleaning and other services as are required as a result of day school sessions.
"Engineer and Custodial overtime will be minimized except in cases where the facility is open to the general public for a non-District sponsored activity or where the C.E.C. (Custodial Engineer Contract) staffing does not allow for the flexibility required without a diminishment of "Day School Services". It is recognized and agreed by the parties that the aforementioned conditions are without prejudice or precedent to any of the other terms and conditions as set forth in this Agreement or the F.L.S.A."
(id., emphasis added). Section T of Article IX provided that salary increases after July 1, 2007, "will be reflected in the Custodial Engineer Contract" (id., Ex. A, Art. IX, Sec. T).
Under this independent contractor arrangement, as an independent contractor under a Unit Service Agreement, also known as a Custodial Engineer Contract ("USA/CEC"), Fisher employs others to fulfill his contractual obligations. In turn, the BPSD pays Fisher and other custodial engineers a certain amount to hire his own employees to provide custodial services at a particular school (id. ¶ 13). Fisher's counsel's affidavit does not give a citation to the precise provision of the Local 409 CBA to this arrangement, but the BPSD cites Article IX, Sec. T of that CBA addressing the USA/CEC (Docket No. 37, BPSD Atty. Decl. ¶ 30). Defense counsel sought to file this USA/CEC under seal (Docket No. 35) but the actual document was not included among the filed documents sought to be sealed. This system is known as the "indirect custodial system, " and that system is also used in the New York City public schools, see also Beck v. Board of Educ. of City of N.Y. , 268 A.D. 644, 52 N.Y.S.2d 712 (2d Dep't 1945), aff'd, 295 N.Y. 717 (1946) (Docket No. 24, Fisher Atty. Aff. ¶ 16). Under this indirect custodial system, a custodial engineer like Fisher would hire, pay, supervise, and fire employees to maintain a school (id. ¶ 14). Fisher also cites to a 1962 opinion of the City of Buffalo's Corporation Counsel to the Superintendent of the BPSD, concluding that the chief engineer-custodian was an independent contractor and that a custodial worker hired by the chief engineer-custodian was not a School District employee for worker's compensation purposes (id. ¶ 15, Ex. B).
Fisher points out that plaintiff is represented by Local 17, I.U.O.E., and that this local has its own collective bargaining agreement with the Buffalo School Engineers Association ("BSEA") (id. ¶ 19, Ex. C ("Local 17 CBA")), the collective bargaining agent for Buffalo School Engineers (id.). Fisher states that the Local 17 CBA was produced to plaintiff (id.). Fisher then contends that, in March 2012, plaintiff "voluntarily agreed to and accepted a transfer from Public School #43 and Defendant Fisher's employ to Public School #37 and the employment by Chief Engineer - Custodian, Kenneth Robinson" (id. ¶ 20; see also Docket No. 37, BPSD Atty. Decl. ¶ 19).
At issue in these motions are plaintiff's attempts to obtain the documents regarding the contractual relationships underlying his employment. Plaintiff moved on March 18, 2014, to compel disclosure (Docket No. 20) and Fisher's insistence that these "confidential" documents not be produced (see Docket Nos. 23, 31). Plaintiff sought from defendants any contracts, term sheets, bid requests, or contract-related documents relating to the relationship between defendants Fisher and BPSD (Docket No. 20, Pl. Atty. Decl. ¶ 16, regarding plaintiff's Document Request #16, Ex. 1, ¶ 26, Ex. 7 (request to Fisher). During oral argument, plaintiff explained that he needs these documents to determine who employed him, the School District or Fisher (see also id. ¶ 38). Defendant Fisher produced his collective bargaining agreement with the BPSD (see id. ¶ 27), the Local 409 CBA, while the BPSD offered to produce "the Master Contract between the Buffalo Board of Education and Local 409 and the Buffalo Board of Education Division of Plant Services" (id. ¶ 17, Ex. 3), but to date the BPSD has failed to do so (id. ¶¶ 21, 20, Ex. 5). Plaintiff found production of the Local 409 CBA did not demonstrate critical information necessary to understand Fisher's employment relationship with the BPSD (id. ¶¶ 19, 28-29, Exs. 4, 8). The privilege log produced by Fisher did not note the reason why his contract with the BPSD was privileged and plaintiff questioned why a contract allocating public funds would be privileged (id. ¶¶ 36, 39).
Plaintiff also sought from Fisher "all W2 forms, work schedules, overtime schedules" for four of plaintiff's coworkers at School #43 (id. ¶ 31, Exs. 1, 9, regarding Document Request #13). In addition to general objections to this request, Fisher responded that the W2 and related documents for coworker Patrick Fisher, Jr., would not be calculated to lead to the discovery of admissible evidence and referred plaintiff to payroll journals for the three other coworkers that were separately produced (id. ¶ 33). Plaintiff deemed this response to be insufficient (id.¶ 34, Ex. 9).
Plaintiff also seeks extension of sixty days from entry of an Order on his motion for completion of discovery (id. ¶ 3), to which defendants voiced no objection.
The School District contends that the Local 409 CBA responded to plaintiff's Document Request #16, since it governs the employment relationship between Fisher and the School District (Docket No. 37, BPSD Atty. Decl. ¶ 29). The School District claims that the USA/CEC is exempt from disclosure pursuant to "Proprietary Information, Trade Secrets, and/or Confidential Information exceptions" (id.¶ 31), presumably of New York State Freedom of Information Law, N.Y. Pub. Officers Law § 87 (see id. ¶ 32). The School District next claims that the terms of the existing USA/CEC are part of the contract negotiation for the next agreement; hence it should not be disclosed (id. ¶¶ 33-34); also that the inter-agency and intra-agency exemptions under FOIL also preclude discovery (id. ¶ 35). Finally, the School ...