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Yourga v. City of Northampton

United States District Court, D. Massachusetts

February 26, 2018

CITY OF NORTHAMPTON, et al. Defendants.



         I. Introduction

         Plaintiff Johnathan Yourga (“Plaintiff”) is a former employee of the Smith Vocational and Agricultural High School (“the School”) in Northampton. He was employed in the automotive department. Plaintiff, who left his position in or around late May or early June 2014, alleges a constructive discharge. The defendants are the City of Northampton, the Trustees of the School, Jeffrey Peterson, former Superintendent of the School, and Kevin Brown, former Director of Security of the School. Plaintiff's claims under 42 U.S.C. § 1983 (“§ 1983”) against the City and the Trustees were dismissed. Plaintiff's remaining claims are: common law negligence and breach of the covenant of good faith and fair dealing against the City and the Trustees, and violations of civil rights under state and federal law, common law conspiracy, invasion of privacy, intentional infliction of emotional distress, defamation, interference with advantageous relations, malicious prosecution, and abuse of process against Peterson and Brown.

         Before the court are three motions: (1) Defendants' Motion for Protective Order Precluding Plaintiff from Obtaining Confidential Personnel Information (Dkt. No. 45); (2) Defendants' Motion for Protective Order Limiting Depositions (Dkt. No. 46); and (3) Plaintiff's Motion for Leave for Additional Depositions (Dkt. No. 51). There is a common theme reflected in the parties' motions. Plaintiff seeks to discover information about employees other than Plaintiff who suffered some form of adverse employment action while Peterson was Superintendent. Defendants object that Plaintiff seeks information that is not relevant to his claims and not proportional to the needs of the case. Defendants further contend that the privacy interests of employees who are not parties to this case outweigh Plaintiff's interests in discovering the reasons for adverse employment actions that employees who are not similarly situated to Plaintiff may have suffered. For the reasons set forth below, the court grants in part and denies in part Defendants' motion for a protective order as to information about employees other than Plaintiff, grants in part and denies in part Plaintiff's motion to exceed the 10-deposition limit in Fed.R.Civ.P. 30(a)(2)(A)(i), and deems as moot Defendants' motion for a protective order limiting depositions in light of the court's ruling on Plaintiff's motion to exceed the 10-deposition limit.

         II. Allegations in the Amended Complaint

         The following facts are alleged in Plaintiff's amended complaint (Dkt. No. 17). Beginning in 1993, Plaintiff was employed as a full-time instructor in the School's automotive department. His employment was subject to a collective bargaining agreement that ensured him employment for a term of three years and provided that he could not be disciplined, suspended, or terminated without just cause (id. at 3). In the spring of 2014, a student at the School complained that Plaintiff was biased against female students in the automotive department (id. at 3-4). In April 2014, Plaintiff was placed on paid administrative leave pending an investigation of the student's complaint (id. at 4). During an ensuing investigation conducted primarily by Brown, Brown involved the local police department by reporting that Plaintiff had stolen two cars from the School (id. at 6). Police officers executed a search warrant at Plaintiff's home on May 21, 2014. At the instigation of Peterson and Brown, Plaintiff was charged with two counts of larceny for the alleged theft from the School of two motor vehicles (id. at 7). In late May 2014, Plaintiff was suspended without pay and a grievance hearing was scheduled for June 3, 2014. Fearing that his retirement benefits were at risk because of statements by Peterson, Plaintiff resigned his employment on June 2, 2014. Plaintiff was tried and acquitted on the criminal charges (id. at 8). He claims that he could not work for an employer who brought unfounded criminal charges against him and that the termination of his employment constituted a constructive discharge (id. at 9).

         III. Discussion

         A. Defendants' Motion for a Protective Order Shielding Confidential Personnel Information

         Defendants seek a protective order precluding Plaintiff from discovering information concerning disciplinary actions, suspensions, or discharges of teachers while Jeffrey Peterson was Superintendent (Dkt. No. 45 at 3-4). Plaintiff initially sought this information by a document production request to which Defendants objected on the grounds, among others, that the request sought information that was not relevant or proportional to the needs of the case, and that it sought confidential personal information about employees other than Plaintiff whose privacy interest in the requested information outweighed Plaintiff's need for the information.[1] Through counsel, Plaintiff represented at oral argument that, in deference to Defendants' confidentiality objection, he had not moved to compel a response from Defendants to his document request number 1. For this reason, so much of Defendants' motion for a protective order as is directed to Plaintiff's document request number 1 is granted.

         Instead of pressing for the production of personnel records, Plaintiff has pursued information about suspensions and discharges of employees other than Plaintiff by questions posed at depositions of current or former School employees possessing responsive information by virtue of their current or former positions at the School. Through counsel, Plaintiff represented to the court that this was intended to be a less intrusive method of gaining information he believed to be relevant to his case. Plaintiff suspended the depositions of Leslie Skantz-Hodgson and of two other individuals pending this court's decision on whether he was entitled to ask each deponent questions about adverse employment actions that were taken against School employees other than Plaintiff while Peterson was superintendent.

         The protection sought by Defendants as to confidential personnel information is governed by Fed.R.Civ.P. 26(b)(2)(C), which provides, in pertinent part, that “[o]n motion or on its own, the court must limit the frequency or extent of discovery otherwise allowable under these rules or by local rule if it determines that . . . 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; . . . that the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” The same rule limits discovery to “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). Rule 26(c) provides, in part, that a party may seek a protective order to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters or by requiring certain confidential information not be revealed or be revealed only in a specified way. Fed.R.Civ.P. 26(c). These rules have been applied to bar certain questions from being asked during a deposition. See, e.g., A.W. v. I.B. Corp., 224 F.R.D. 20, 22-26 (D. Me. 2004).

         “When a party resists the production of evidence, it ‘bears the burden of establishing lack of relevancy or undue burden.'” Autoridad de Carreteras y Transportacion v. Transcore Atl., Inc., 319 F.R.D. 422, 427 (D.P.R. 2016) (quoting Sanchez-Medina v. UNICCO Serv. Co., 265 F.R.D. 24, 27 (D.P.R. 2009)). Defendants argue that disciplinary actions taken against employees other than Plaintiff are not relevant because Plaintiff cannot rely on so-called “comparator evidence” to show that other employees also suffered an adverse employment action based on a protected characteristic such as race, ethnicity, religion, national origin, or gender. Because Plaintiff has not alleged any such consistent and illegal animus as a motivating factor in adverse employment actions taken on Peterson's watch, Defendants contend that Plaintiff's questions cannot lead to the discovery of relevant or admissible evidence about Peterson's motives for initiating and pursuing the investigation into Plaintiff's conduct. Moreover, even if evidence related to other employees has some marginal relevance to Plaintiff's case, the privacy interests of those employees in the confidentiality of their sensitive personnel information outweighs any interest Plaintiff has in such evidence. For his part, Plaintiff asserts that information about employees other than Plaintiff is discoverable because he “seeks to show that Superintendent Peterson engaged in a pattern of consistent pattern-like acts that were intended to bring about the termination or resignation of employees” and that the discovery will show that his motives were “to find dollars for his football team and he wanted to eliminate any dissent.” These motives, while not illegal, could not constitute just cause for the discipline or discharge of an employee protected by a collective bargaining agreement (Dkt. No. 49 at 7 & n.9). The court must consider whether the information about other employees that Defendants “seek[] to protect ‘warrant[s] conferral of any special consideration' and ‘the type and kind of protection the law affords.'” Theidon v. Harvard Univ., 314 F.R.D. 333, 335 (D. Mass. 2016) (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998)). This analysis “balances [Plaintiff's] need for the information at issue against [Defendants'] ‘interest in confidentiality and the potential injury to the free flow of information that disclosure portends.'” Id. (quoting Cusumano, 162 F.3d at 716).

         Plaintiff concedes that Defendants raise a legitimate point about the privacy concerns of other employees (Dkt. No. 49 at 2). Indeed, the information Plaintiff is seeking to elicit from deponents about the reasons or justifications for discipline, suspension or discharge is among the most private information about an employee that is likely to be in an employer's possession. See Whittingham v. Amherst Coll., 164 F.R.D. 124, 127-28 (D. Mass. 1995). This legitimate privacy interest must be balanced against Plaintiff's need for information so long as that information meets the definition of relevance at the discovery stage. See Theidon, 314 F.R.D. at 335 (citing Krolikowski v. Univ. of Mass., 150 F.Supp. 246, 249 (D. Mass. 2001)). While the question is close, the court concludes that Plaintiff has shown that such information is relevant and may lead to the discovery of admissible evidence. The presiding District Judge declined to dismiss Plaintiff's claims against the named individual defendants - Peterson and Brown - because Plaintiff had alleged sufficient facts from which the court could infer that these defendants had “intentionally worked together for the purpose of harming Plaintiff, including by making misleading statements to the [Northampton Police Department] and by leveraging those misleading statements to coerce Plaintiff to resign rather that grieve his suspension” (Dkt. No. 34 at 6). While it is true that Plaintiff is not seeking true “comparator” evidence, the reasons the presiding District Judge gave for denying Defendants' motion to dismiss a majority of Plaintiff's claims supports a finding that evidence that bears on the motives of the named individual defendants with respect to employees other than Plaintiff may be relevant as proof of their motives in his case. The privacy interests Defendants are invoking must be weighed against the Plaintiff's need for information that will help him prove that Peterson and Brown did not act “'”in good faith, without malice, and without corruption”'” (id. at 7 (quoting South Bos. Betterment Tr. Corp. v. Bos. Redevelopment Auth., 777 N.E.2d 812, 820 (Mass. 2002) (quoting Gildea v. Ellershaw, 298 N.E.2d 847, 859 (Mass. 1973))). Their treatment of other employees may (or may not) be relevant and admissible on this point. See Sprint/United Mgmt. Co. v. Mendelsohn, 128 S.Ct. 1140, 1143 (2008) (in discrimination case, evidence about an employer's treatment of other employees “is neither per se admissible nor per se inadmissible”). Courts generally have permitted a plaintiff some discovery about adverse employment actions taken against other employees by a supervisor who is alleged to have acted improperly vis-à-vis the plaintiff. See, e.g., Brandt v. Fitzpatrick, No. 1:15-cv-00461-NT, 2017 WL 3841652, at *3 (D. Me. Sept. 1, 2017) (courts have limited discovery of “me too” evidence to the same unit or division and decisionmakers who allegedly discriminated against the plaintiff; citing cases). In seeking limited information about other employees who were allegedly subjected to adverse employment actions in which Peterson had a role, Plaintiff is seeking information about employees who can be characterized as similarly situated to himself at least in the respect that the same decisionmaker had some involvement in the adverse employment action about which Plaintiff seeks information (Dkt. No. 49 at 8-11).

         Defendants have argued with some force that the information Plaintiff seeks about Peterson's actions has more of a flavor of inadmissible character evidence than it does of admissible evidence of motive and intent, see Fed. R. Evid. 404(a), and it may well be that evidence about employees other than Plaintiff will be excluded at trial. See Fecho v. Eli Lilly and Co., 914 F.Supp.2d 130, 137-38 (D. Mass. 2012) (discussing distinction between admissible habit evidence and inadmissible character evidence); cf Lund v. Henderson, 807 F.3d 6, 11 (1st Cir. 2015) (affirming exclusion of evidence where its admission would have turned the trial into a series of mini-trials about other misconduct complaints against the defendant police officer). Admissibility is, however, “a narrower inquiry than [is] discoverability.” Brandt, 2017 WL 3841652, at *4. The court is not prepared at this stage of the proceedings to issue a ...

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