denying production of a personnel file where plaintiff failed to provide sufficient information to demonstrate that the employee and plaintiff were similarly situatedSummary of this case from Johnson v. Riverhead Cent. Sch. Dist.
10 Civ. 3384 (BSJ) (JLC)
MEMORANDUM AND ORDER
JAMES L. COTT, United States Magistrate Judge.
Before the Court in this employment discrimination action is an application by Plaintiff Marie Dzanis to compel Defendants JPMorgan Chase & Co., JPMorgan Distribution Services, Inc., Steve Lundquist, and David Thorp ("Defendants") to produce personnel files of 14 JPMorgan employees. For the reasons discussed below, Dzanis' application is granted in part and denied in part.
Dzanis was employed by JPMorgan as a Divisional Sales Manager ("DSM") with the title of Vice President in the Funds and Financial Intermediaries' Wholesaler's Group from 2002 through 2007. (Complaint, dated Apr. 22, 2010 ("Compl."), ¶ 7 (Dkt. No. 1); Answer, dated Apr. 29, 2011 ¶ 14 (Dkt. No. 31); Plaintiff's Letter, dated Oct. 19, 2011 at 1). Her business unit was led by George Gatch (Compl. ¶ 46), and she was supervised by Defendants Steve Lundquist and David Thorp. (Id. ¶¶ 9, 10). Dzanis' employment was terminated on or about August 1, 2007. (Id. ¶ 7). She commenced this action in April, 2010, alleging that she was discriminated against on the basis of her gender. Following the denial of a motion to dismiss, Dzanis served document requests on Defendants in September, 2011. By letter to the Court dated October 19, 2011, Dzanis requested a pre-motion conference to compel Defendants' compliance with several document requests. After two telephonic conferences on November 9 and November 15, 2011, the Court resolved all of the discovery disputes, except whether Dzanis was entitled to the production of personnel files from certain JPMorgan employees. Specifically, Dzanis seeks:
By Order dated May 3, 2010, Judge Jones referred this case to me for general pre-trial supervision. (Dkt. No. 5).
personnel file[s] (whether or not the documents are maintained in a file labeled as a "personnel file"), including but not limited to any documents related to disciplinary actions, investigations, attendance records, compliance issues, performance evaluations, agreements, contracts, separation agreements, severance agreements, releases, compensation and any type of complaint by or against [any one of the 14 individuals].(Plaintiff's Document Request No, 6, dated July 22, 2011). The Court reserved judgment on this issue and directed the parties to submit letters in support of their respective positions. The parties submitted letters to the Court on November 14, 2011, which the Court has docketed and made part of the record of the case. (See Plaintiff's Letter ("Pl. Letter") (Dkt. No. 39); Defendants' Letter ("Def. Letter") (Dkt. No. 40)).
Dzanis seeks the production of personnel files for three groups of JPMorgan employees, totaling 14 individuals. The first group—Defendant Lundquist and non-parties Phil Anglim, Thomas Moretti, Jed Laskowitz, and Dan Anniello—is made up of five employees who Dzanis contends were similarly situated to her and whose files may offer evidence of disparate treatment. (Pl. Letter at 2-3). The second group—Defendants Lundquist and Thorp, and non-parties George Gatch and Mark LaRoe—are "decision-makers" whose files Dzanis argues may reveal evidence of other allegations of discrimination or retaliation. (Id. at 3). The third group—non-parties Kim Perry, Jim George, Shawn Gold, Jeff Fox, John Partelli, and Steve Allen—consists respectively of a Human Resources employee who investigated Dzanis' claims at JPMorgan, four managers who reported to Dzanis, and a manager whom Defendants allegedly asked to investigate Dzanis' marital status prior to her employment. (Id. at 4). Defendants object to the document request on three grounds: (1) the personnel files contain private and confidential information about non-parties (other than Defendants Lundquist and Thorp); (2) the request is overbroad and not reasonably calculated to lead to the discovery of admissible evidence; and (3) all potentially relevant material is already being produced in response to other requests. (Def. Letter at 1).
"A district court has wide latitude to determine the scope of discovery." In re Agent Orange Prod. Liability Litig., 517 F.3d 76, 103 (2d Cir.2008): see also S.E.C. v. Rajaratnam, 622 F.3d 159, 180-81 (2d Cir. 2010) (discussing discretion of district court to manage discovery). Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that a party is entitled to discovery on "any nonprivileged matter that is relevant to any party's claim or defense[.]" Fed. R. Civ. P. 26(b)(1). Discoverability is determined by the broad standard of relevance. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
The parties here do not dispute that personnel files of comparable employees are discoverable in an employment discrimination lawsuit, see, e.g., Hollander v. American Cyanamid Co., 895 F.3d 80, 84-85 (2d Cir. 1990); Smalls v. Bright, No. 09 Civ. 6545 (CJS), 2011 WL 5419685, at *5 (W.D.N.Y. Nov. 9, 2011), and that the disclosure of personnel files, which can include confidential information, is generally subject to a protective order. See, e.g., Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 601 (2d Cir. 1986) (order in gender discrimination lawsuit directing production of personnel files for review by counsel, but not plaintiffs, was "a proper attempt to balance the plaintiffs' desire for full disclosure of relevant information against the defendant's desire to preserve the privacy of its employees"); Duling v. Gristede's Operating Corp., 266 F.R.D. 66, 73-74 (S.D.N.Y. 2010) (protective order required to balance "plaintiffs' interest in unrestricted use of [personnel] files against defendants' interest in the privacy of their employees' personal information"). Personnel files of both parties and non-parties are discoverable. See, e.g., Mitchell v. Metro. Life Ins. Co., Inc., No. 03 Civ. 10294 (WHP), 2004 WL 2439704, at *2 (S.D.N.Y. Nov. 2, 2004) (protective order entered to maintain confidentiality of personnel files of non-party employees because files contained sensitive information).
A. Group One: Comparable Employees
A threshold issue is whether any of the 14 individuals—parties or non-parties—were similarly situated to Dzanis such that their personnel files could provide evidence of disparate treatment. Dzanis' allegations that Defendants did not select her for a promotion (Compl. ¶¶ 28-32), treated her differently than her male colleagues (Compl. ¶¶ 33-44), reassigned her job responsibilities (Compl. ¶¶ 53-56), and ultimately terminated her employment (Compl. ¶ 66) support the relevance of personnel files for employees who had the same job as she did. See Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (employees are comparable where they are (1) "subject to the same performance evaluation and discipline standards" and (2) "engaged in comparable conduct") (citations omitted). The most directly comparable employees, therefore, are those that worked, as Dzanis did, as Divisional Sales Managers ("DSMs"). See, e.g., Sasikumar v. Brooklyn Hosp. Ctr., No. 09 Civ. 5632 (ENV) (RML), 2011 WL 1642585, at *2 (E.D.N.Y. May 2, 2011) (ordering production in employment discrimination case of personnel files for employees who worked, as plaintiff did, as "clerical service associates").
The parties' submissions indicate that three employees—Steve Lundquist, Phil Anglim, and Thomas Moretti—worked as DSMs. While Dzanis does not state explicitly in her letters that Lundquist and Anglim worked as DSMs, Defendants do, and acknowledge that they were similarly situated to Dzanis. In their letter of October 21, 2011, Defendants write: "The only employees who were even arguably 'similarly situated' to plaintiff during her employment, was [sic] Steve Lundquist . . . when he was in the position of Western Divisional Sales Manager . . . and Phil Anglim, when he was in the position of Central Divisional Sales Manager." (Defendants' Letter, dated Oct. 21, 2011, at 3). As to Moretti, Dzanis characterizes him as her "replacement as a DSM" (Pl. Letter at 2), a description that is uncontradicted in Defendants' letter. Given that they had the same job title, Dzanis, Lundquist, Anglim, and Moretti were likely "subject to the same performance evaluation and discipline standards" and "engaged in comparable conduct." Graham, 230 F.3d at 40 (citations omitted). As Dzanis asserts, their files may contain evidence that other DSMs were held to a different standard than Dzanis or were awarded promotions based on different criteria. See, e.g., Weinstock v. Columbia Univ., No. 95 Civ. 0569 (JFK), 1996 WL 658437, at *9 (S.D.N.Y. Nov, 13, 1996) (tenure dossiers of other faculty members in plaintiff's academic field are discoverable because of potential comparative evidence).
Likewise, the Court finds that Anniello can be considered a comparable employee to Dzanis. Although Anniello did not have the same job title, Dzanis asserts that he "received preferential treatment from George Gatch" and was "permitted to keep his job despite violating a serious company policy." (Pl. Letter at 2). Based on these representations, which are uncontradicted by Defendants, Dzanis and Anniello worked in the same business unit and appear to have been subject to the same disciplinary standards. Accordingly, the Court directs Defendants to produce the personnel files for Lundquist, Anglim, Moretti, and Anniello subject to a protective order to be negotiated by the parties.
The parties, who have consented to the entry of a protective order governing the disclosure of any personnel files produced pursuant to this Order (Pl. Letter at 4; Def. Letter at 2), have established good cause for the entry of such an order under Rule 26(c). The Court finds that a protective order is appropriate in this case in light of the "[l]egitimate privacy concerns [that] exist with regard to personnel files." Ladson v. Ulltra East Parking Corp., 164 F.R.D. 376, 377 n.2 (S.D.N.Y. 1996). --------
The final employee that Dzanis contends is a comparator is Jed Laskowitz. Dzanis argues that he is a comparable employee because he was "another manager at JPMorgan" and upon his job being eliminated, "he was given preferential treatment with regard to severance offers and/or other job opportunities within JPMorgan[.]" (Pl. Letter at 2). That information is not sufficient for the Court to conclude at this time that Laskowitz can be considered a comparable employee. Notwithstanding her suspicions that Laskowitz received preferential treatment from JPMorgan, Dzanis seeks to establish that both of them are comparable simply because they were "manager[s] within JPMorgan[.]" Dzanis does not assert, for example, that she and Laskowitz worked at JPMorgan during the same time period, had similar responsibilities, or that they worked in the same business unit. Absent such information, recognizing Laskowitz as a comparator could in theory bring any manager at JPMorgan who Dzanis believes received preferential treatment under the "comparable employee" umbrella. Dzanis has thus not demonstrated any likelihood that Laskowitz's personnel file will contain relevant information.
B. Group Two: Decision-Makers
The second group of individuals for whom Dzanis seeks personnel files consists of four employees—Gatch, LaRoe, Lundquist, and Thorp—whom she characterizes as "the decision- makers in this case[.]" (Pl. Letter at 3). Because the Court has already directed Defendants to produce Lundquist's personnel file on the basis that he is a comparable employee, see supra Section II.A., the analysis here pertains only to Gatch, LaRoe, and Thorp. Dzanis does not contend that these three employees are comparable to Dzanis, and does not base her argument for the relevance of these files on any such comparability. Rather, she asserts that the files may reveal that the decision-makers have been subject to discrimination complaints from other employees, engaged in retaliatory conduct, or disciplined or warned for "an issue that touches on this case." (Pl. Letter at 3).
To support her argument for the review of the files of the decision-makers, Dzanis cites two cases from the District of Kansas stating that discovery of a personnel file is appropriate where the individual is alleged to have engaged in the discrimination or retaliation at issue, or played a significant role in the decision or incident that gives rise to the lawsuit. See, e.g., Oglesby v. Hy-Vee, Inc., No. 04 Civ. 2440 (KHV), 2005 WL 857036, at *2 (D. Kan. Apr. 13, 2005); Fox-Martin v. H.J. Heinz Operations, No. 02 Civ. 4121 (JAR), 2003 WL 23139105, at *2 (D. Kan. Dec. 19, 2003). The Court finds the rationale of these cases persuasive as to Thorp and LaRoe. Thorp, who is a named Defendant in this case, is the Managing Director and Head of Retail Sales at JPMorgan (Def. Letter at 2) and is alleged to have had "supervisory authority" over Dzanis during her employment. (Compl. ¶ 10; Answer ¶ 10). Dzanis alleges that Thorp discriminated against her by stripping her of lucrative sales territories and terminating her employment. (Compl. ¶¶ 49, 83). Because Thorp is alleged to have participated in the discriminatory conduct at issue here, the information contained in his personnel file—including any complaints of discrimination or retaliation, or disciplinary actions—would be directly relevant to Dzanis' claims. Accordingly, Defendants are directed to produce Thorp's personnel file subject to a protective order.
Similarly, LaRoe's personnel file is relevant. Dzanis alleges that following her termination as a DSM, she was being considered by LaRoe for a position with JPMorgan's Private Banking division in Florida. She further contends that after complaining to Human Resources that her termination was discriminatory, she was not offered the Private Banking position. (Compl. ¶¶ 75-80). Because LaRoe played a role in deciding whether to offer Dzanis employment in private banking, his involvement is tied to the allegations of retaliation in this case. Dzanis has therefore made a sufficient showing that information contained in LaRoe's personnel file is relevant to her claims, and Defendants are directed to produce LaRoe's personnel file subject to a protective order as well.
By contrast, the relevance of the personnel file for Gatch is not evident. Dzanis asserts that Gatch, who was the president of the business unit that employed Dzanis (Compl. ¶ 46; Answer ¶ 46), was unsympathetic when she complained to him about Lundquist's treatment. (Compl. ¶¶ 45-48). On the basis of those sparse allegations, it is hard to see how Gatch's personnel file is relevant. Gatch is not a comparable employee. Nor does Dzanis state that Gatch was her supervisor. Indeed, apart from vague allegations that Gatch said "a woman undermined him in his career" and "that life is unfair" (Compl. ¶¶ 47-48), Dzanis does not allege that Gatch was involved in any discriminatory conduct.
Moreover, even if Dzanis suspected a history of discrimination complaints against Gatch, she will receive such documents through other document requests. As set forth on the record on November 9, 2011 (and memorialized by Order dated November 28, 2011) (Dkt. No. 38), the Court has ordered Defendants to produce all internal and external complaints of gender discrimination or retaliation filed by anyone in Gatch's group between 2002 and 2008. Any relevant information pertaining to complaints of discrimination or retaliation directed at Gatch is sufficiently covered by Defendants' production pursuant to that ruling. Accordingly, Dzanis' application to compel Defendants to produce Gatch's personnel file is denied.
C. Group Three: Other Employees
The third group of individuals for whom Dzanis seeks personnel files includes JPMorgan employees from different divisions, including one individual from Human Resources, several Regional Sales Managers ("RSMs"), and a "former JPMorgan manager." (Pl. Letter at 2). The Court concludes that Dzanis is not entitled to review the personnel files for any of these six individuals. As to Perry, the Human Resources Manager, Dzanis contends that a review of the personnel records "may show that she has a history of performing shoddy investigative work or that she has subject employees whom she has previously investigated to retaliation." (Pl. Letter at 4). Dzanis' proffered explanation is entirely speculative. Perry is neither a comparable employee nor Dzanis' supervisor, and Perry is not alleged to have taken part in the discrimination or retaliation at issue. Dzanis has thus not made a sufficient showing that disclosure of Perry's personnel file is either relevant or reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1).
In addition, Dzanis' request to review the personnel records of four RSMs who reported to her is overbroad. She seeks to review the files of George, Gold, and Fox, who had all supposedly complained about Dzanis' management, to determine whether they had complained about other managers or possessed "other performance deficiencies" that would impact their credibility. (Pl. Letter at 4). She also argues for reviewing the personnel file for Partelli, another RSM, for evidence of Dzanis' superior management skills. (Id.). Dzanis does not cite any authority for the position that she is entitled to the discovery of personnel records for these employees, none of whom were similarly situated to Dzanis. Moreover, as Defendants note, whatever knowledge these employees have about Dzanis' job performance would not be documented in their personnel files. (Def. Letter at 2). Given the nature of the information sought, therefore, Dzanis should utilize other discovery tools, such as depositions, to obtain additional evidence. See, e.g., Duck v. Port Jefferson Sch. Dist., No. 07 Civ. 2224 (ADS) (WDW), 2008 WL 2079916, at *7-8 (E.D.N.Y. May 14, 2008) (plaintiff not entitled to discovery of personnel file of school superintendent, "especially in light of the other discovery tools available to the plaintiff). Accordingly, Dzanis' request to review the personnel files for George, Gold, Fox, and Partelli is denied.
The final employee for whom Dzanis seeks to review personnel records is Allen, "a former manager whom defendants [allegedly] asked to investigate [Dzanis'] marital status prior to her hire." (Pl. Letter at 4). Dzanis seeks to obtain evidence to rehabilitate Allen in the event that Defendants try to impeach his credibility. She asserts this argument as it relates to Allen, as well as to all 14 individuals, claiming that those files should be produced because they may contain information that she can use to impeach Defendants' witnesses or rehabilitate her own. (Id.). While Dzanis is entitled to seek discovery on any "matter that is relevant to any party's claim or defense[,]" she must establish "good cause" to justify "discovery of any matter relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1). Courts have required parties to establish good cause where discovery is sought solely to unearth potential impeachment material, see, e.g., CSI Investment Partners II, L.P. v. Cendant Corp., No. 00 Civ. 1422 (DAB) (DFE), 2006 WL 1524591, at *2 (S.D.N.Y. May 31, 2006), and have not found such cause where the request is speculative. See, e.g., Surles v. Air France, No. 00 Civ. 5004 (RMB) (FM), 2001 WL 815522, at *4 (S.D.N.Y. July 19, 2001) (no good cause for discovery where request is based on "nothing more than speculative hope that useful impeachment material will be unearthed"). See also Sheppard v. Beerman, No. 91 Civ. 1349 (ILG), 1999 WL 551242, at *1 (E.D.N.Y. June 25, 1999) (evidence that may impeach "does not, without more, mean that such evidence is discoverable"); Tartaglia v. City of New York, No. 98 Civ. 5584 (JGK) (RLE), 1999 WL 151104, at *2 (S.D.N.Y. Mar. 19, 1999) ("Evidence which may be useful for impeachment purposes is not relevant to the subject matter of the litigation, but involves collateral issues of credibility.").
Here, Dzanis' reasoning that employees' personnel files are discoverable because they may reveal potential impeachment or rehabilitative evidence does not meet the "good cause" requirement of Rule 26(b)(1). While she identifies generic ways in which evidence found in a personnel file could be used to impeach a witness, she does not articulate any specific basis to justify seeking out impeachment evidence in the personnel files of these employees. For example, she does not identify particular documents that may constitute potential impeachment evidence for any employee. Indeed, Dzanis does not make any targeted argument for good cause, asserting instead that the possible presence of admissible impeachment evidence in personnel files, by itself, warrants disclosure. (Pl. Letter at 4). However, Dzanis' argument theoretically requires a court to order disclosure of personnel files—or, for that matter, any set of documents—wherever a requesting party speculates that they may contain impeachment evidence. Such a conclusion would run afoul of the "good cause" requirement in Rule 26(b)(1). Accordingly, absent a further showing of good cause, Dzanis' application for Allen's personnel file is denied. Moreover, the Court declines to order the production of any personnel files on the basis of potential impeachment evidence without a more specific showing of good cause.
For the reasons discussed above, Dzanis' application for the disclosure of personnel files is granted as it relates to Defendants Lundquist and Thorp and non-parties Anglim, Moretti, Anniello, and LaRoe and denied as to non-parties Laskowitz, Gatch, Perry, George, Gold, Fox, Partelli, and Allen. The parties are directed to submit a protective order to govern the disclosure of these personnel files within 10 days of the date of this Memorandum and Order. Once the protective order has been approved by the Court, the personnel files ordered disclosed shall be made available promptly at defense counsel's office for plaintiff's counsel to inspect (and copy, as appropriate). These files will be produced for "attorney's eyes only," until further order of the Court.
SO ORDERED. Dated: New York, New York
November 30, 2011
JAMES L. COTT
United States Magistrate Judge