Opinion
No. C-06-3209 MMC (EMC).
November 29, 2006
Both the University and Ms. Keller-McIntyre have objected to this Court's order of October 31, 2006, in which it granted Ms. Keller-McIntyre's request for an extension of the discovery deadline. Judge Chesney referred the objections to the undersigned for resolution. Having reviewed the parties' briefs and accompanying submissions, the Court hereby rules as follows.
I. DISCUSSION
A. University's Objections
The University makes, in essence, two objections. First, it asks that the order be modified so that Ms. Keller-McIntyre may designate only five similarly situated employees whom she believes received better treatment. Second, it asks that, if any records are to be produced, they should first be submitted to the Court for in camera review to determine whether the records actually involve similarly situated employees.
The Court finds that the first modification sought by the University is warranted. Indeed, the Court's order of October 31 implied that the five employees that Ms. Keller-McIntyre could designate were to be similarly situated employees. See Order of 10/31/06, at 2 (noting that, presumably, Ms. Keller-McIntyre wanted to examine the personnel records of "the employees similarly situated to her who were treated more favorably to see whether they were deserving of the more favorable treatment").
However, the second modification sought by the University is not justified. First, the Court rejects the University's argument that a similarly situated employee is limited to an employee who had the same supervisor, was subject to the same standards, and engaged in the same conduct. "[S]imilarly situated does not require that the employees be identically situated. The employees need not necessarily have the same supervisor, be subject to the same standards, and engage in the same conduct. The relevance of such factors depends on the circumstances and nature of the case. The critical question is whether the plaintiff and the other employee are similarly situated in `all material respects.'" Bowden v. Potter, 308 F. Supp. 2d 1108, 1117 (N.D. Cal. 2004) (emphasis in original). "The issue of similarly situated status is . . . fact specific and defies a mechanical or formulaic approach." Id.
Second, the question of whether an employee is similarly situated is ordinarily a question of fact for the jury. See id.; see also George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005) ("`Whether two employees are similarly situated ordinarily presents a question of fact for the jury.'"); Lunini v. Grayeb, 395 F.3d 761, 770 n. 6 (7th Cir. 2005) ("[A]s a general matter, whether individuals are similarly situated is a factual question for the jury."); Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (stating that the question of whether an employee is similarly situated to the plaintiff is ordinarily a question of fact for the jury). If the Court were to adopt the University's proposal, then it would be preempting the jury's role as factfinder. The privacy rights of University employees should, as a general matter, be adequately protected by (1) a protective order and (2) this order which limits Ms. Keller-McIntyre's designation of employees to those whom she believes are similarly situated. If the University believes that one of the employees designated by Ms. Keller-McIntyre is so outside the bounds of who could be similarly situated ( e.g., no reasonable jury could find the employee to be similarly situated), then it may move for a protective order. Of course, before seeking such recourse, the University should meet and confer with Ms. Keller-McIntyre to discuss, inter alia, why she believes the employee(s) to be similarly situated and why the University believes otherwise. If in camera review is needed to resolve any such dispute, the Court may employ such review at that time.
As to the current designation by Ms. Keller-McIntyre of employees who were treated more favorably ( i.e., of Mr. Katz, Mr. Ford, Mr. Davis, Mr. Dziadur, and Mr. Taylor), the Court shall not order the University to comply because the Court is now modifying its October 31 order. See page 5, infra. Ms. Keller-McIntyre is forewarned that, in designating the five similarly situated employees, she must be prepared to explain why they are similarly situated and be prepared to articulate the criteria by which that similarity is established.
Of course, this does not bar Ms. Keller-McIntyre from obtaining their personnel records if they are any of the decisionmakers who allegedly discriminated against her (as specified by the October 31 order).
B. Ms. Keller-McIntyre's Objections
Ms. Keller-McIntyre makes several objections in her "appeal."
First, she argues that the University should be compelled to produce personnel records without any limitation as to time. At a minimum, she contends, the University should produce personnel records within the last ten (10) years because her "claim involves 10 years of treatment by defendant." Pl.'s "Appeal" at 1. The Court rejects Ms. Keller-McIntyre's contention that records should be produced without any limitation as to time. Originally, she asked for documents within the past five (5) years only. Moreover, the relevance of documents that could be a decade old is marginal at best. As for Ms. Keller-McIntyre's contention that records within the past ten (10) years should still be produced, the Court disagrees. Again, originally, Ms. Keller-McIntyre limited her request to the past five (5) years. Furthermore, only that conduct by the University and its employees that falls within the statute of limitations can be the basis of Ms. Keller-McIntyre's discrimination claims. Records from the past three (3) years should be sufficient for Ms. Keller-McIntyre to move forward with her claims.
Second, Ms. Keller-McIntyre asserts that she needs the personnel files of eleven University employees in order to show: (1) that certain employees were treated more favorably ( e.g., because they received promotions when their work was "less than or simply equal to" hers or because they received "lesser evaluations" than she did but "were not stripped of responsible work duties"); and (2) that certain employees who are supervisors discriminated against other employees on the basis of sex, age, or disability. Pl.'s "Appeal" at 2. Ms. Keller-McIntyre does not explain which University employee fits into which category. Nor does she explain why the Court's order of October 31 precludes her from obtaining the personnel files of these employees. In fact, the Court notes that the October 31 order permits Ms. Keller-McIntyre to obtain the personnel files of all decisionmakers who allegedly discriminated against her on the basis of, e.g., age, gender, and disability.
Ms. Keller-McIntyre's brief actually lists fourteen individuals but three of the individuals are listed twice ( i.e., Jonathan Davis, Lucas Ford, and Richard Dziadur).
However, the October 31 order does specify that Ms. Keller-McIntyre may obtain the personnel files of only five employees who were treated more favorably (as modified infra, five similarly situated employees who were treated more favorably). Ms. Keller-McIntyre implies that five is not sufficient because there are both employees who were treated more favorably by promotion and employees who were treated more favorably by failure to "demote." The Court concludes that the balance it struck in permitting Ms. Keller-McIntyre to take the depositions of five similarly situated employees who were treated more favorably is fair and adequate. Ms. Keller-McIntyre's need for additional depositions of comparators must be balanced against the burden upon the University and the privacy interests of employees whose files would be disclosed.
Finally, Ms. Keller-McIntyre argues that the Court should order the University to respond to written discovery that she propounded on October 10, 2006. This Court previously denied this request on November 2, 2006, see Docket No. 107, and Judge Chesney affirmed this Court's ruling on November 14, 2006. See Docket No. 120. Accordingly, this objection by Ms. Keller-McIntyre is meritless. Both this Court and Judge Chesney have already ruled on the request.
II. CONCLUSION
Accordingly, the Court concludes that its order of October 31 shall be modified only as follows: The Court shall not enforce the current designation by Ms. Keller-McIntyre of employees who were treated more favorably ( i.e., of Mr. Katz, Mr. Ford, Mr. Davis, Mr. Dziadur, and Mr. Taylor). Instead, within three (3) court days of this order, Ms. Keller-McIntyre shall identify for the University no more than five (5) similarly situated employees who were allegedly treated more favorably than her. Within two (2) weeks, the College shall produce from the personnel records of these employees (within the last three (3) years) any and all documents related to job performance, including but not limited to qualifications and performance appraisals.Ms. Keller-McIntyre is forewarned that she risks imposition of sanctions if she designates an employee(s) who could not reasonably be considered similarly situated such that the University would be compelled to move for — and the Court issue — a protective order. Likewise, the University is forewarned that it risks imposition of sanctions if it files a motion for a protective order based on too narrow an interpretation of who might be similarly situated.
This order disposes of Docket Nos. 111 and 123.
IT IS SO ORDERED.