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Wahab v. State of New Jersey Department of Environmental Protection

United States District Court, D. New Jersey

October 30, 2017

ATIYA WAHAB, Plaintiff,



         This matter has been opened to the Court upon Motion (Docket Entry No. 117) by Plaintiff Atiya Wahab (“Plaintiff”) seeking an Order compelling the production of facts and documents regarding other claims of discrimination/retaliation. Defendants State of New Jersey Department of Environmental Protection (“NJDEP”), Steven Maybury, Gwen Zervas and State of New Jersey (collectively, “Defendants”) oppose Plaintiff's motion (Docket Entry No. 120). The Court has fully reviewed the submissions in support of and in opposition to Plaintiff's motion. For the following reasons, Plaintiff's Motion to Compel is DENIED.


         Plaintiff's Amended Complaint alleges violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e to 17, the New Jersey Law Against Discrimination, N.J.S. §10:5-1 to 49, the New Jersey Civil Rights Act, N.J.S. §10:6-1 to 2, and asserts other statutory and common law claims. Pl.'s Second Am. Compl, ¶13, Docket Entry No. 47. Plaintiff, a woman of Bengali origin, was transferred from the New Jersey Department of Health and began her employment with Defendant NJDEP in September of 1989. Id. ¶2, ¶18. Plaintiff alleges that while serving as a Technical Coordinator for the Site Remediation Program, her supervisor, Frank Camera promised her a promotion and told her that it was being processed. Id. ¶23. After Camera was replaced, however, employees within the NJDEP provided Plaintiff with conflicting reports about the state of her promotion, and ultimately, she was not promoted, leading her to file an internal complaint. Id. ¶¶24-25. When Plaintiff was promoted to Site Mitigation Specialist I after several months, she claims that she was not provided with the requisite back pay or seniority, and filed a claim with the Equal Employment Opportunity Commission (“EEOC”) for discrimination. This action reached a settlement in 2005. Id. ¶¶ 25-26. As a Site Mitigation Specialist, Plaintiff claims that she suffered discriminatory, retaliatory and harassing treatment by her superiors. Id. 27-28. As a result, Plaintiff sought and received a transfer to the Bureau of Operation and Maintenance and Management (“BOMM”). Id. ¶¶31-32.

         At the BOMM, Plaintiff claims she was demoted beneath employees with lesser experience, but was later promoted in February 2011 to a supervisory position in the Bureau of Case Management, under Defendant Steve Maybury (“Maybury”). Id. ¶¶ 33-35. In mid-2011, Plaintiff claims that she was told to avoid Maybury after he told her supervisor that he did not want to speak to her. Id. ¶38. After Plaintiff was passed over for transfers, Defendant Gwen Zervas (“Zervas”) became Plaintiff's supervisor. Plaintiff claims that she was “verbally assaulted” by Zervas, who voiced her displeasure with working with Plaintiff, and continued to mistreat her throughout 2011. Id. ¶¶ 42-53. After unsuccessfully petitioning for a transfer, Plaintiff spoke with defendant Pam Lyons, director of the NJDEP's Equal Employment Opportunity Office about this treatment. Id. ¶57.

         Plaintiff filed her initial complaint against Defendant State of New Jersey Department of Environmental Protection (“Defendant N.J. DEP”) on October 19, 2012. (Docket Entry No. 1). Defendant N.J. DEP filed a motion to dismiss on February 15, 2013. (Docket Entry No. 6). On July 8, 2013, the District Court denied Defendant N.J. DEP's motion to dismiss and gave Plaintiff 30 days to file an amended complaint. (Docket Entry No. 9). Plaintiff filed her amended complaint on August 6, 2013. (Docket Entry No. 11).

         The Court held an initial scheduling conference on September 30, 2013 and issued the first case management schedule on October 1, 2013. (Docket Entry No. 17). This matter has been actively litigated ever since. The parties have filed 11 motions. (Docket Entry Nos. 3, 6, 34, 68, 76, 85, 97, 99, 102, 117, 121). The Court has held 12 status conferences and has entered 15 orders regarding discovery. (Docket Entry Nos. 40, 50, 60, 73, 74, 75, 82, 83, 95, 98, 103, 105, 109, 113, 116). In Its June 5, 2017 letter order, the Court gave Plaintiff permission to file the instant motion. The Court noted, however, that Plaintiff should address why this request for information is coming five years into the litigation and that Plaintiff should also address how the request is narrowly tailored to seek relevant information. (Docket Entry No. 113).

         Plaintiff filed the instant motion on June 24, 2017 seeking discovery of documents pertaining to claims of “discrimination and harassment” made to the NJDEP starting from three years before Plaintiff made her first claims of discrimination/harassment. Plaintiff also seeks an order “that the direction not to answer deposition questions or provide discovery based about other claims of discrimination and retaliation is improper.” Pl.'s Br. in Supp. of Mot. at 4.

         Relying upon federal law, Plaintiff cites cases such as Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) and Glass v. Philadelphia Electric Co., 34 F.3d 188, 195 (3d Cir. 1994) to support her assertion that previous instances of unfair treatment towards a particular protected class gives evidence of a pattern of discrimination and provides support for the validity of a plaintiff's claims to a jury. Id. at 1-2. Focusing on the State of New Jersey's support of such discovery in claims against State agencies, Plaintiff cites to the “New Jersey State Policy Prohibiting Discrimination in the Workplace” and its requirement that “Each State Agency is responsible for designating an individual or individuals to receive complaints of discrimination/harassment, investigating such complaints, and recommending appropriate remediation of such complaints.” Id. at 3.

         In response, the Defendants argue that the State should not be compelled to provide documents related to previous EEO cases filed with the NJDEP. Defendants note that since Plaintiff's initial complaint of discrimination was filed on May 8, 2004, Plaintiff is seeking more than thirteen years of confidential information. Defs.' Opp'n. Br. at 2. Emphasizing that the request for such files is both late and overly-broad, the crux of Defendants' opposition comes in reference to the limited discoverability of such confidential documents. Id. at 3.

         Plaintiff's motion seeks production of confidential personnel files and confidential EEO complaints and investigations of other employees. Defendants contend that “[w]ere this Court to grant Plaintiff's request to compel EEO files, there would be an irrevocable compromise of essential privacy and confidentiality interests of employees . . .”. Defendants further note that release of personnel records of other employees implicates the same concerns. Defs.' Opp'n. Br. at 3. Defendants first assert that when assessing a request for confidential information state law should take precedence over federal law. “In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Id. at 3, citing to Federal Rule of Evidence 501. Defendants state that the Courts recognize a need to protect the confidential information of others, balanced with the Court's need to protect against the plaintiff's need for such information. Defs' Opp'n Br. at 3 (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 548 (1997)).

         Defendants contend that the files sought by Plaintiff, namely the documents related to previous claims of “discrimination and retaliation” brought against the NJDEP, are confidential documents that may not be transferred into the Plaintiff's possession without first being subject to an in camera review. First, the Defendants assert that EEO files for previous cases of discrimination or retaliation are governed by N.J.A.C. 4A:7-3.1. Specifically, Defendants point to a specific section that requires that “[a]ll complaints and investigations [be] handled, to the extent possible, in a manner that will protect the privacy and interests of those involved.” N.J.A.C. 4A:7-3.1(j) (emphasis added). In determining the discoverability of such investigative reports, the Defendants assert that the Court must balance discovery on (1) plaintiff's ability to obtain such information elsewhere; (2) the degree of impact that denying such discovery will have on the plaintiff's claim; and (3) the impact that the discovery would have on the State's investigation of the issue. Defs.' Opp'n Br. at 7 (citing McClain v. Coll. Hosp., 99 N.J. 346, 351 (1985)). While such information may be discovered, the Defendants further assert that the request must be relevant before allowing it to be discovered. Id. (citing K.S. and B.S. v. ABC Prof'l. Corp., 330 N.J.Super. 288, 299 (App. Div. 2000). Defendants declare that Plaintiff's mere proclamation that the EEO information may be relevant is insufficient to compel this information under established New Jersey Law. Id.

         In addition, Defendants argue that employees should not be required to discuss “personnel information” related to any claim before the NJDEP other than those brought by the Plaintiff. Id. at 8. Like EEO files, Defendants assert that Courts have routinely found personnel files to be confidential, often not requiring a Confidentiality Order to be protected, and require evidence of relevance to the case at bar before being discovered. Id. at 8-9 (citing U.S. EEOC v. Schrager, 2000 U.S. Dist. LEXIS 21501, *8 (C.D.C.A. 2000). Removed from the general discovery of documents under the Open Public Records Act by Executive Order No. 9, the Court has sought to protect individuals from having personal information within their personnel files released, with the subsequent Executive Order No. 11 preventing the State from conveying personnel information to anyone without the official capacity to examine it. Defs.' Opp'n. Br. at 9.

         II. ...

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