United States District Court, D. Massachusetts
JONATHAN A. YOURGA, Plaintiff,
CITY OF NORTHAMPTON, et al. Defendants.
MEMORANDUM AND ORDER ON MOTION FOR PROTECTIVE ORDER
BY DEFENDANTS; MOTION FOR PROTECTIVE ORDER LIMITING
DEPOSITIONS BY DEFENDANTS; AND MOTION FOR LEAVE FOR
ADDITIONAL DEPOSITIONS BY PLAINTIFF (DKT. NOS. 45, 46 &
KATHERINE A. ROBERTSON, U.S. MAGISTRATE JUDGE.
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.
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.
Allegations in the Amended Complaint
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).
Defendants' Motion for a Protective Order Shielding
Confidential Personnel Information
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. 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.
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.
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).
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).
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).
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 ...