LAWRENCE J. VILARDO, District Judge.
On November 23, 2016, the plaintiff, Joann R. Kozak, commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634; the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213; and the New York Human Rights Law ("NYHRL"). Docket Item 1. On January 17, 2017, the case was referred to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B). Docket Item 10. On March 9, 2018, Kozak moved to compel the production of certain documents by the defendant, Office Depot, Inc., Docket Item 29; on March 28, 2018, Office Depot responded, Docket Item 30; and on March 30, 2018, Kozak replied, Docket Item 33. On May 30, 2018, Judge McCarthy granted Kozak's motion in part and denied it in part. Docket Item 38.
On June 27, 2018, both parties objected to Judge McCarthy's decision. Docket Items 46 and 47. Office Depot objected on the grounds that the personnel files and earnings data of certain non-party employees were not sufficiently relevant to warrant production of such sensitive information. See Docket Item 46. Kozak objected on grounds that Office Depot had not demonstrated that producing all employee complaints, as well as all earnings data through the resolution of the case, would be unduly burdensome; and that Office Depot should be required—not merely encouraged—to produce an affidavit certifying that certain requested information did not exist. See Docket Item 47. On July 17, 2018, each party responded to the other's objections, Docket Items 50 and 51, and on July 24, 2018, both sides replied, Docket Items 52 and 53.
This Court has carefully and thoroughly reviewed the record in this case, the objections and responses, and the materials submitted by the parties. Based on that review, the Court affirms Judge McCarthy's decision to grant the plaintiff's motion in part.
Under Rule 72(a) of the Federal Rules of Civil Procedure, when a party timely objects to a magistrate judge's decision on a non-dispositive matter, "the district judge in the case must ... modify or set aside any part of the order that is clearly erroneous or is contrary to law." Id.; see also 28 U.S.C. § 636(b)(1)(A). "Matters concerning discovery generally are considered `nondispositive' of the litigation." Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010) (quoting Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)).
"[A] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). This standard "does not entitle a reviewing court to reverse ... simply because it is convinced that it would have decided the case differently." Id. An order is contrary to law "when it fails to apply or misapplies relevant statutes, case law[,] or rules of procedure." Catskill Dev., L.L.C. v. Park Place Entrn't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002) (citation omitted).
"A party seeking to overturn a discovery order therefore bears a heavy burden." Botta v. Barnhart, 475 F.Supp.2d 174, 185 (E.D.N.Y. 2007) (citing Com-Tech Assocs. v. Computer Assocs. Int'l, 753 F.Supp. 1078, 1098-99 (E.D.N.Y. 1990), aff'd, 938 F.2d 1574 (2d Cir. 1991)). "Pursuant to this highly deferential standard of review, magistrates are afforded broad discretion in resolving discovery disputes and reversal is appropriate only if their discretion is abused." Id. (quoting Universal Acupuncture Pain Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 2002 WL 31309232, at *1 (S.D.N.Y. Oct. 15, 2002)).
The scope of discovery permitted under the Federal Rules of Civil Procedures is set forth in Rule 26(b)(1): "Unless otherwise limited by court order, ... [p]arties may obtain discovery regarding any nonprivileged matter that is [1] relevant to any party's claim or defense and [2] proportional to the needs of the case." Id. "Proportionality and relevance are `conjoined' concepts; the greater the relevance of the information in issue, the less likely its discovery will be found to be disproportionate." Walker v. City of New York, 2018 WL 1686102, at *2 (E.D.N.Y. Mar. 30, 2018) (quoting Vaigasi v. Solow Mgmt. Corp., 2016 WL 616386, at *14 (S.D.N.Y. Feb. 16, 2016)).
Information is relevant if: "(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 401. Relevance is "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). "Relevance is a matter of degree, and the standard is applied more liberally in discovery than it is at trial." Walker, 2018 WL 1686102, at *2.
"[P]roportionality focuses on the `marginal utility of the discovery sought' and requires a balancing of the multiple factors set forth in [Rule] 26(b)(1)." Id. (quoting Vaigasi, 2016 WL 616386, at *14). Those factors include:
Fed. R. Civ. P. 26(b)(1).
Office Depot first objects to Judge McCarthy's order that it produce certain personnel files. Docket Item 46 at 12-23. It argues that Kozak "has not met her burden of showing that the information in the personnel records that she seeks is relevant to the claims or defenses in this matter or [is] proportional to the needs of the case." Id. at 13. More specifically, it argues (1) that Judge McCarthy's order "does not consider the burden of producing confidential and sensitive documentation regarding non-parties without limitation" and (2) that Kozak "[h]as [n]ot [s]hown [t]hat [a]ny of [t]he [i]ndividuals [s]he [i]dentifies [a]re [s]imilarly [s]ituated, or [o]therwise [c]omparators, to [h]er." Id. at 14, 16.
In her first request, Kozak sought the personnel files of 33 identified non-parties, as well as those of "any individual" who both worked within Kozak's district during a specified time frame and (i) "was hired for, considered for, promoted to, demoted from, terminated from, and/or held the position of Assistant Store Manager, Store Manager I and/or Store Manager II"; (ii) was "managed by [Kozak]"; (iii) was "over 40 years old [and] was terminated or [had her] position ... eliminated"; or (iv) "took a position last held by an employee over 40 years old." See Docket Item 29-2 at 4-7. Office Depot produced personnel files for Kozak, her supervisor, and Kozak's replacement. See Docket Item 29-1 at 3.
Kozak moved to compel production of the remaining personnel files because "[t]he individuals ... are, by and large, ... either similarly situated to [Kozak], supervisors of [Kozak], or individuals involved in the discriminatory behavior alleged by [Kozak]." Id. at 4. Judge McCarthy ordered as follows:
Docket Item 45 at 28-31.
Office Depot objects to that order, claiming that "up to one hundred (100) non-party employees and former employees ... would be subject to disclosure" under Judge McCarthy's order. Docket item 46 at 6 n.3.
Kozak alleges that Office Depot discriminated against her on the basis of her gender, age, and alleged disability. See Docket Item 1. One means by which an employment-discrimination plaintiff may prove her claims is through evidence that the employer treated comparator individuals differently than it treated her. "When considering whether a plaintiff has raised an inference of discrimination by showing that she was subjected to disparate treatment, ... the plaintiff must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citation omitted). Whether two employees are "similarly situated in all material respects" is determined "based on (1) whether [they] were subject to the same workplace standards and (2) whether the conduct for which [they were] discipline[d] was of comparable seriousness." Id. at 40. "In other words, there should be an objectively identifiable basis for comparability. Hence, the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical." Id. (citations omitted); see also McGuinness, 263 F.3d at 54 ("A plaintiff is not obligated to show disparate treatment of an identically situated employee. To the contrary, ... it is sufficient that the employee to whom [the] plaintiff points be similarly situated in all material respects." (citation omitted)).
In light of these principles, it is clear that Judge McCarthy did not misstate the governing law in granting Kozak's request. Kozak may prove her case through evidence that similarly-situated individuals—not necessarily identically-situated—were treated differently by Office Depot. And Judge McCarthy did not clearly err in finding that Kozak has adequately articulated why the named individuals are similarly situated to her. See Docket Item 45 at 29-30. Moreover, Judge McCarthy appropriately balanced the parties' competing interests, as well as the need to move this case forward, in ordering Office Depot to produce information "that bears on ... an[] issue that is or may be in [her] case," Oppenheimer Fund, 437 U.S. at 351, while also cautioning Kozak—repeatedly—that she protect non-parties' privacy interests by not pursuing irrelevant leads or mishandling the information. See id.
The same is true with respect to individuals who worked within Kozak's district during a specified time frame and (a) were "hired for, considered for, promoted to, demoted from, terminated from, and/or held the position of Assistant Store Manager, Store Manager I and/or Store Manager II"; (b) were "over 40 years old [and] [were] terminated or [had their] position ... eliminated"; or (c) "took ... position[s] last held by an employee over 40 years old." See Docket Item 29-2 at 6-7. Judge McCarthy did not clearly err in finding that such individuals are sufficiently situated, for purposes of discovery, and this Court will uphold his order that Office Depot produce these files.
In sum, the Court upholds that part of Judge McCarthy's order which requires Office Depot to produce the personnel files referred to in subparagraphs (a)-(kk) and (mm)-(nn). Judge McCarthy should rule explicitly on the request in subparagraph (II).
Office Depot next objects to Judge McCarthy's order that it produce payroll records and W-2s for store managers in Kozak's district. See Docket Item 46 at 23-25. It argues that this request is "overly broad and seeks documents that are not relevant to the claims and defenses in this matter, nor proportional to the needs of the case." Id. at 23. More specifically, it argues that Kozak has not demonstrated that other store managers are similarly situated to her. Id. It also argues that Kozak's "argument is highly speculative and inapposite to the allegations in the [c]omplaint, where she has not set forth any allegations regarding unequal pay or disparate treatment based on pay." Id. at 24.
In her forty-fifth, forty-sixth, and forty-seventh requests, Kozak sought information related to "raises and/or bonuses," W-2 statements and other tax documents, and payroll records for all assistant store managers, "Store Managers I," and "Store Manager[s] II" in her district. See Docket item 29-2 at 22. Office Depot produced only Kozak's W-2 statements and payroll records. See Docket Item 29-1 at 11.
Kozak moved to compel production of the remaining responsive information, arguing that the information is "relevant because [it] would show the disparity, if any, between the wages, raises and bonuses between older management employees and younger management employees, as well as between the female management employees and male management employees." Id. at 11-12. She further argued that she "is unable to properly calculate her lost wage claim since she does not know the wages of Store Managers and District Managers since her termination." Id.
Judge McCarthy ordered as follows:
Docket Item 45 at 60-61.
Judge McCarthy did not clearly err in ordering Office Depot to produce the requested information. As noted above, Kozak has adequately articulated, for the purposes of discovery, that the individuals whose compensation data she seeks are similarly situated to her. And as also noted above, Judge McCarthy has addressed concerns about confidentiality and has instructed the parties to "proceed cautiously" before publicly filing any sensitive information. See Docket Item 45 at 31.
To the extent Office Depot argues that production is inappropriate because Kozak has not brought a claim for unequal pay—that is, because she has not brought a separate claim under the Equal Pay Act, 29 U.S.C. § 206(d)(1)—it misses the mark. A plaintiff may use evidence of compensation discrimination to prove a claim under Title VII and the NYHRL. See generally Lenzi v. Systemax, Inc., 944 F.3d 97, 108-11 (2d Cir. 2019). Kozak seeks to do so here. See Docket Item 1 at 17 (Kozak alleging that Office Depot violated Title VII when it "discriminated against [her] ... with respect to her compensation"). The information Kozak seeks in her forty-fifth, forty-sixth, and forty-seventh requests therefore is relevant to her claims, and this Court upholds Judge McCarthy's order that Office Depot produce it.
Kozak first objects to Judge McCarthy's order that Office Depot produce employee complaints with respect to store and assistant store managers but not for all other employees. Docket Item 47 at 11-13. She argues that her request, which is limited to complaints from within her district, is "tailored ... to ensure that production would not be unduly broad or burdensome." Id. at 12. And she argues that Office Depot "has not stated any reason why ... the burden on it will increase in ... also producing other similar complaints from within [Kozak's district]," given that Office Depot "ha[s] agreed to produce other complaints from [s]tore [m]anagers and [a]ssistant [s]tore [m]anagers." Id.
In her forty-eighth request, Kozak sought "[a]ll documents pertaining to all claims of ... sex discrimination, disability discrimination, harassment, hostile work environment, and retaliation made by any employee of [Office Depot] working within [Kozak's district during the specified time period]." Docket Item 29-2 at 22. Office Depot advised Kozak in writing that "no store Manager or Assistant Store Manager" filed a responsive complaint during the relevant time period. See Docket Item 50-2 at 2.
Judge McCarthy ordered as follows:
Docket Item 45 at 67-68.
Judge McCarthy did not clearly err in denying Kozak's motion to compel production of complaints made by all employees in Kozak's district. Kozak has not established that information related to non-management employees is relevant to her claim because she has not shown that such individuals are similarly situated to her. Therefore, Judge McCarthy's order appropriately balanced the parties' interests by ensuring Kozak's access to relevant information (that is, complaints by individuals similarly situated to Kozak) but not to information as to which relevancy had not been established (that is, complaints by dissimilar employees).
Kozak next argues that Judge McCarthy erred in ruling that Office Depot "attempt" to provide a party affidavit certifying that Office Depot has either fully responded or cannot respond to paragraphs 15, 18, and 48 of Kozak's request for production. See Docket Item 47 at 13.
Judge McCarthy ordered as follows:
Docket Item 45 at 44.
Office Depot stated in an affidavit filed July 17, 2018, that Kozak's objection "is unnecessary because ... [Office Depot] is preparing to provide the [requested] affidavit." See Docket Item 50-1 at 3. Kozak, in her reply of July 24, 2018, stated that she had not received an affidavit. See Docket Item 53 at 9-10. This Court has not received any update.
At this point, it appears that Office Depot will provide the requested affidavit, if it has not done so already. For that reason, this Court need not decide whether Judge McCarthy clearly erred. If and when it becomes clear that Office Depot will not provide the requested document, Kozak should raise that issue in the first instance before Judge McCarthy.
Finally, Kozaks objects to Judge McCarthy's order that Office Depot produce managers' pay and benefits information only through the close of discovery, rather than through the close of trial. See Docket Item 47 at 14. Kozak argues that "[i]n order to prove damages ..., Kozak is entitled to ongoing disclosure of [the requested information]." Id.
Judge McCarthy ordered as follows:
Docket Item 45 at 74.
Judge McCarthy did not clearly err in limiting the scope of discovery to the close of discovery. On the contrary, he sensibly and practically explained that "we'll be chasing our tail" if a time frame is not set and that "we have to draw the curtain down on fact discovery" at some point. See id. at 67, 74. And he further explained that, should the case proceed to damages, Kozak could visit the issue again. See id. at 74. There is no error—let alone clear error—in that reasonable decision.
For the reasons stated above, this Court affirms Judge McCarthy's decision on the plaintiff's motion to compel. The case is referred back to Judge McCarthy for further proceedings consistent with the referral order of January 17, 2017, Docket Item 10.
SO ORDERED.
