Byrne v. Yale University, Inc.
Filing
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ORDER granting in part and denying in part 122 Motion for Reconsideration for reasons set forth in the attached Memorandum of Decision and Order.The Clerk shall SEAL the following exhibits: Plaintiff Ex. 9 [Dkt. 80-4], Plaintiff Ex. 43 [Dkt. 80-5], Plaintiff Ex. 45 [Dkt. 80-7], Plaintiff Ex. 46 [Dkt. 80-8], and Pl. Ex. 70 [Dkt. 80-11]. Redacted versions of exhibits as set forth in the Order are due within 14 days. Signed by Judge Vanessa L. Bryant on 04/10/2020. (Diamond, Matthew)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SUSAN BYRNE
Plaintiff,
v.
YALE UNIVERSITY, INC.
Defendants.
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No. 3:17-CV-1104 (VLB)
April 10, 2020
MEMORANDUM OF DECISION AND ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S MOTION FOR RECONSIDERATION
Shortly after the Court ruled on the Defendant Yale University’s motion for
summary judgment, the Court denied Plaintiff Susan Byrne’s motion to seal thirty
five of the 165 exhibits filed with her opposition memorandum. [Dkt. 121]. The sole
reason advanced by Plaintiff for sealing was Defendant’s designation of these
materials as “Confidential” pursuant to the Protective Order. [Ibid.]. The Defendant
now moves for reconsideration and requests sealing of nine exhibits: Pl. Exs. 7, 9,
43, 45, 46, 49, 70, 85, and 162. [Dkt. 122 (Def. Mot. for Recons.)]. For reasons set
forth herein, the Court GRANTS in part and DENIES in part Defendant’s motion for
reconsideration.
Legal Standard for Reconsideration
In the Second Circuit, the standard for granting a motion for reconsideration
“is strict, and reconsideration will generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked—matters, in other
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words, that might reasonably be expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see D. Conn.
L. R. 7(c) (requiring the movant to file along with the motion for reconsideration “a
memorandum setting forth concisely the controlling decisions or data the movant
believes the Court overlooked”).
There are three grounds for granting a motion for reconsideration: (1)
“intervening change of controlling law”; (2) “the availability of new evidence”; or
(3) a “need to correct a clear error or prevent manifest injustice.” Virgin Atl.
Airways Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18
C. Wright, A. Miller & E. Cooper, Fed. Practice & Procedure, § 4478 at 790). If the
Court “overlooked controlling decisions or factual matters that were put before it
on the underlying motion,” reconsideration is appropriate. Eisemann v. Greene,
204 F.3d 393, 395 (2d Cir. 2000) (per curium). However, a motion for reconsideration
should be denied when the movant “seeks solely to relitigate an issue already
decided.” Shrader, 70 F.3d at 257; Patterson v. Bannish, No. 3:10-cv-1481 (AWT),
2011 WL 2518749, at *1 (D. Conn. June 23, 2011) (same). A party seeks to relitigate
a matter when they ask the court to consider a matter a second time based on facts
and or law available to but not presented by the movant in the first instance.
Defendant’s motion for reconsideration was timely filed pursuant to D. Conn.
L. R. Civ. P. 7(c)(1).
Analysis
The Court assumes the parties’ familiarity with factual records and the
Court’s recent ruling on Defendant’s motion for summary judgment. See [Dkt. 120
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(Order and Mem. of Decision on Def. Mot. Summ. J.)]. Defendant argues that
reconsideration is warranted to avoid a manifest injustice because of the chilling
effect from public disclosure of internal investigations and the Court had not
previously heard Defendant’s argument on the issue. The Court agrees, in part.
The Court rejects the argument that Defendant has not had the opportunity
to be heard on this issue. Plaintiff filed her Motion to Seal on May 15, 2019. [Dkt.
79]. The Court did not deny the motion until more than ten months later, on March
30, 2020. During that time, the deficiency of Plaintiff’s motion to seal was patent.
The Standing Protective Order was docketed on July 2, 2017 and expressly states:
14. Any Designated Material which becomes part of an official judicial
proceeding or which is filed with the Court is public. Such Designated
Material will be sealed by the Court only upon motion and in
accordance with applicable law, including Rule 5(e) of the Local Rules
of this Court. This Protective Order does not provide for the automatic
sealing of such Designated Material. If it becomes necessary to file
Designated Material with the Court, a party must comply with Local
Civil Rule 5 by moving to file the Designated Material under seal.
[Dkt. 4].
Local Civil Rule 5 sets forth the legal standard for determining whether material
should be sealed in compliance with the First Amendment to the United States
Constitution and the federal common law. D. Conn. L.R. Civ. P. 5(e). Plaintiff’s
motion which relied solely on the parties’ designation of the material for discovery
purposes is not one of the bases set forth in Local Rule 5 and thus was clearly not
a basis for the court to seal the material. Defendant had ample opportunity to
supplement Plaintiff’s motion to seal the exhibits or file its own motion advancing
the same arguments raised now.
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Instead, the Court is concerned with the potentially adverse collateral effects
on uninvolved third parties who privately revealed sensitive allegations during the
Defendant’s subsequent internal investigation into Professor Roberto González
Echevarría.
Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) explains how different
standards and underlying policy considerations govern the public disclosure of
materials during discovery versus an adjudication. During discovery, “protective
orders are useful to prevent discovery from being used as a club by threatening
disclosure of matters which will never be used at trial. Discovery involves the use
of compulsory process to facilitate orderly preparation for trial, not to educate or
titillate the public.” Ibid. These same considerations do not apply in an
adjudication, which is a formal government act, and, absent exceptional
circumstances, subject to public scrutiny. Ibid. “Documents used by parties
moving for, or opposing, summary judgment should not remain under seal absent
the most compelling reasons.” Ibid. This distinction is precisely why the Plaintiff’s
motion to seal failed in the first instance.
“It is well established that the public and the press have a qualified First
Amendment right to . . . access certain judicial documents.” Lugosch v. Pyramid
Co. of Onondaga, 435 F.3d 110, 120 (2d Cir. 2006). As such, a court may seal a
judicial document or a portion thereof only where the movant shows sealing is
“essential to preserve higher values and is narrowly tailored to serve that interest.”
Matter of N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987). When doing so, D. Conn.
L.R. Civ. P. 5(e)(3) requires the Court to make “particularized findings
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demonstrating that sealing is supported by clear and compelling reasons and is
narrowly tailored to serve those reasons.”
As Joy explains, “an exercise of judgment is in order. The importance of the
material to the adjudication, the damage disclosure might cause, and the public
interest in such materials should be taken into account before a seal is imposed.”
Joy, 692 F.2d at 893.
Defendant argues that this case is analogous to Kleftogiannis v. Inline
Plastics Corp., 411 F. Supp. 3d 216, 230-33 (D. Conn. 2019). In Kleftogiannis, Judge
Bolden permitted the redaction of non-management employees’ names who
participated in an internal investigation from the complaint. Ibid. There, Judge
Bolden found that “Inline has a significant and weighty interest, as an employer
charged with in ensuring that its employees do not fear reprisal or retaliation from
current or former co-workers as a result of their participation in internal
investigations, and that those employees have significant privacy interests of their
own as well.” Id. at 233. As discussed in Kleftogiannis, “[T]he privacy interests of
innocent third parties ... should weigh heavily in a court's balancing equation.” Ibid.
(quoting S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir. 2001)). Judge Bolden
concluded that the employer’s proposed solution struck the appropriate balance
and was narrowly tailored. Ibid.
Defendant’s interest in preserving confidentiality to promote robust internal
investigations, particularly given its legal obligations under Title VII and Title IX to
investigate sexual harassment allegations, is a compelling one. However, their
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proposed solution is not narrowly tailored to balance that interest against the
public’s right to know.
For reasons made apparent by the Court’s ruling on Defendant’s motion for
summary judgment, the content of the Climate Review Report (Pl. Ex. 7)[Dkt. 80-3]
is necessary to understand the Court’s ruling. The Court held that “a reasonable
jury could find that the senior faculty members speculated about the content of the
statements to Climate Review investigators concerning sexual harassment and
were angered by her participation in the investigation.” [Dkt. 120 (Order and Mem.
of Decision on Def. Mot. Summ. J.) at 22]. The Climate Report contains Plaintiff’s
allegations of sexual harassment, raises the possibility of collusion, and details the
departmental politics that are alleged to have enabled the retaliatory tenure denial.
The provost reviewed the report prior to deciding Plaintiff’s appeal of her tenure
denial. [Id. at 11, 13-14].
Aside from the opinions of a few junior faculty members and lecturers, the
report principally concerns the five senior professors in the department, all of
whom participated in the tenure decision. All student names are redacted. The
allegations in the report are not salacious. The Court finds no basis to seal
Plaintiff’s Exhibit 7 and it shall remain unsealed.
For the same reason, there is no basis to seal deposition excerpts from
Attorney Jamaal Thomas, Defendant’s in-house counsel who co-conducted the
Climate Review investigation. [Pl. Ex. 162 (Dkt. 80-34)] Attorney Thomas testified
that he was concerned about potential collusion during the Climate Review. [Pl. Ex
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162 (Thomas Depo.) at 137:06-138:25]. Plaintiff testified that her participation in the
Title IX investigation was prompted by Attorney Thomas. See [Dkt. 120 (Order and
Mem. of Decision on Def. Mot. Summ. J.) at 11-12].
By contrast, the University Wide Committee on Sexual Misconduct’s
(“UWC”) proceeding against Professor González Echevarría arose from the Title IX
investigation and took place after Plaintiff’s tenure vote. See [Pl. Ex. 46 (Letter to
González Echevarría regarding UWC investigation)]. Plaintiff is not proceeding on
a claim of sexual harassment and need not prove that Professor González
Echevarría’s alleged sexual harassment is legally actionable. Manoharan v.
Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988).
The Court’s ruling on summary judgment did not consider the process or findings
of the UWC investigation because it was not essential to the Court’s holding. [Dkt.
120 (Order and Mem. of Decision on Def. Mot. Summ. J.) at 22].
Given the singular nature of the UWC investigation, the details of alleged
sexual harassment are deeper and broader than those raised by Plaintiff. The
names of many of the individuals referenced and incidents involved are far
removed from the witnesses and decision-makers mentioned in the parties’
briefing and the Court’s summary judgment opinion. The third-party witnesses
made these confidential statements four years ago, in some cases about events
over a decade earlier. The comments are of sensitive nature and concern
allegations of both direct instances of sexual harassment and secondhand
accounts. As to redacted students’ names, the Court is concerned that a savvy
reader could deduce their identities, given the specificity of the statements and the
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small circle of knowledgeable persons. The Court finds that these third parties
have a compelling privacy interest and failure to protect that interest would amount
to “manifest injustice.” Not only would its public disclosure thwart the ability to
obtain candid responses to essential investigations of impropriety, it could
besmirch the names of innocent people.
The remaining exhibits subject to reconsideration 9, 43, 45, 46, 49, 70, and
85 all address the UWC investigation. Although the Court has found a compelling
need to protect third parties’ privacy interest, the sealing order must still be
narrowly tailored to achieve that end. Defendant’s requested blanket sealing of
these documents does not do so. The Court, therefore, GRANTS reconsideration
as follows:
Plaintiff Ex. 9 [Dkt. 80-4]
This document is titled: “UWC Complaint Against Prof. Roberto Gonzalez
Echevarria Specific Incidents With Direct Testimony by the Person Harmed or by a
Corroborating Witness.” Paragraphs 1-6 address Plaintiff’s complaints. The
remaining portion consists of detailed complaints from students and other faculty
members who were not-decision makers. This document is ordered SEALED.
Defendant shall refile a redacted version of this document with paragraphs 1-6
unredacted.
Plaintiff Ex. 43 [Dkt. 80-5]
This document is titled “UWC Panel Report to Provost Benjamin Polak.” This
document is ordered SEALED. Defendant shall refile a redacted version of the
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document that contains pages 1-2 and 8-9. This information contains the
committee’s findings and recommendations without any potentially identifiable
information from otherwise peripheral actors. Defendant’s discipline of Professor
González Echevarría is already subject to public disclosure by virtue of the
pleadings. See, e.g. [Dkt. 22 (Second Am. Compl.) ¶ 101].
Plaintiff Ex. 45 [Dkt. 80-7]
This document consists of handwritten meeting notes that are difficult to
decipher but discuss sexual harassment allegations made by peripheral actors.
The author is not stated in Plaintiff’s opposition brief and is not immediately
apparent in the notes. Plaintiff’s cites these notes to establish that another junior
faculty member was sexually harassed. [Dkt. 81 (Pl. Mem. in Opp’n.) at 6].
Accordingly, these notes are ordered SEALED.
Plaintiff Ex. 46 [Dkt. 80-8]
The next exhibit is titled “Fact Finder's Report in the Case Brought By Deputy
Title IX Coordinator Carl Hashimoto Against Professor Roberto Gonzalez
Echevarria.” The document contains detailed third-party allegations of sexual
harassment in passim. The exhibit is ordered SEALED. The Defendant is directed
to refile a copy with the following portion unredacted: the “Background” section,
pages 4-5, discussing the Climate Review and animosity thereto.
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Plaintiff Ex. 49 [Dkt. 80-9]
This exhibit is an email chain regarding witness statements. It contains no
sensitive material, as there is no content specific information. It shall remain
unsealed.
Pl. Ex. 70 [Dkt. 80-11]
This exhibit is a draft of the fact-finder’s report at Plaintiff Ex. 46 [Dkt. 80-8].
It shall be sealed for the same reason.
Plaintiff Ex. 85 [Dkt. 80-16]
This exhibit is an email chain between the UWC panel and Provost Polak
concerning the committee’s recommendation to restrict Professor González
Echevarría’s ability to make tenure and other staffing decisions to guard against
retaliation. The email states that “[t]he Panel … feels that the danger of retaliation
by RGE against his colleagues -- many of whom have spoken against him -- is
significant and that voting regarding tenure and promotion is a context in which
such retaliation may well take place. Thus, there is good reason to guard against
this possibility.” This email chain does not discuss any sensitive third-party
allegations of sexual harassment. It may also be construed to lend evidentiary
support for Plaintiff’s claims. It shall remain unsealed.
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Conclusion
For the above stated reasons, the Court GRANTS in part and DENIES in part
Defendant’s motion for reconsideration [Dkt. 121] of the Court’s Order denying
Defendant’s motion to seal. [Dkt. 122]. Defendant shall file redacted versions of the
exhibits addressed herein within 14 days of entry of this Order.
In the meantime, the Clerk shall SEAL the following exhibits: Plaintiff Ex. 9
[Dkt. 80-4], Plaintiff Ex. 43 [Dkt. 80-5], Plaintiff Ex. 45 [Dkt. 80-7], Plaintiff Ex. 46 [Dkt.
80-8], and Pl. Ex. 70 [Dkt. 80-11].
IT IS SO ORDERED.
____/s/_________________
Hon. Vanessa L. Bryant
United States District Judge
Dated this day in Hartford, Connecticut: April 10, 2020
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