United States District Court, D. New Jersey
TONIANNE J. BONGIOVANNI UNITED STATES MAGISTRATE JUDGE.
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.
BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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).
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.
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.
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.
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.
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
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.
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.