COLE et al v. STATE OF MAINE OFFICE OF INFORMATION TECHNOLOGY

Filing 33

ORDER ON 26 MOTION TO SEAL By JUDGE JOHN A. WOODCOCK, JR. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KAYLA MARIE COLE and
TERESA L. GORDON,
Plaintiffs,
v.
STATE OF MAINE, OFFICE OF
INFORMATION TECHNOLOGY,
Defendant.

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1:17-cv-00071-JAW

ORDER ON MOTION TO SEAL
After raising issues of the right of public access to judicial records and receiving
the further responses of the parties, the Court accedes to the State of Maine, Office
of Information Technology’s (OIT) suggestion that filed documents should reference
a former employee of OIT by “male employee,” rather than by name or initials.
I.

BACKGROUND
On February 23, 2017, Kayla Marie Cole and Teresa L. Gordon filed suit in

this Court against the State of Maine Office of Information Technology (OIT), alleging
that the OIT, their former employer, violated the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq, (Title VII), the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq.
(MHRA), and the Maine Whistleblowers’ Protection Act, 26 M.R.S. §§ 831, et seq.
(WPA). Compl. (ECF No. 1). On May 19, 2017, OIT answered the Complaint, denying
its essential allegations and raising certain affirmative defenses. Answer to Compl.
(ECF No. 5). On August 11, 2017, OIT filed an amended answer. Am. Answer to
Compl. (ECF No. 11). On September 13, 2017, OIT filed a motion for court approval

of a confidentiality agreement, and on the same day, the Court granted the motion.
Consent Mot. for Confidentiality Order (ECF No. 12); Consent Confidentiality Order
(ECF No. 13).
On October 13, 2017, OIT filed a notice of intent to file a motion for summary
judgment. Def.’s Notice of Intent to Move for Summ. J. (ECF No. 15). The Court held
a Local Rule 56(h) conference on November 8, 2017. Min. Entry (ECF No. 19). On
December 15, 2017, OIT moved for an order placing portions of the deposition of
James Smith under seal. Def.’s Mot. to Seal (ECF No. 22). On December 17, 2017,
the Magistrate Judge granted the motion to seal. Order Granting Mot. to Seal (ECF
No. 25).
On December 21, 2017, OIT moved to seal portions of its motion for summary
judgment on the ground that the redacted portions of its filings “contain personnel
information about a third party to this matter.” Def.’s Mot. to Seal (ECF No. 26)
(Def.’s Mot.). OIT states that the “redacted information is not contained in or related
to a ‘final written decision,’ and therefore, is not public information.” Id. at 2. OIT
filed public versions of the documents. Id.; (ECF Nos. 27-28).
Viewing OIT’s motion to seal as implicating the right of public access to judicial
records, on January 3, 2018, the Court issued an order on OIT’s motion to seal. Order
on Mot. to Seal (ECF No. 29). The Court deferred ruling on OIT’s motion to seal and
required OIT to respond to its concerns by January 18, 2018 and allowed the
Plaintiffs, if they chose, to file a memorandum setting forth their position. Id. at 9.
On January 18, 2018, the Plaintiffs filed their position, arguing that the motion to

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seal should be denied. Pls.’ Mem. Regarding Order on Mot. to Seal (ECF No. 30). Also
on January 18, 2018, OIT filed its position, reiterating its view that the personnel
information concerning a male employee must be sealed under Maine law, 5 M.R.S.
§ 7070. Def.’s Mem. of Law in Support of its Mot. to Seal (ECF No. 32). However,
following the Court’s suggestion in its January 3, 2018 Order, OIT suggested that in
the filed documents, the subject employee should be referred to as “male employee.”
Id. at 5.
II.

DISCUSSION
Despite OIT’s memorandum, the Court remains concerned about OIT’s

position that information regarding a former state employee must remain sealed
under 5 M.R.S. § 7070. OIT is defending this case, in part, by challenging the
Plaintiffs to identify “any male employee of OIT who engaged in the same conduct for
which Plaintiffs were investigated and disciplined who was treated more favorably.”
Def.’s Mot. for Summ. J. at 7 (ECF No. 26). Then OIT claims the identity of a potential
comparable male employee must be sealed from the public. At its extreme, OIT
questions whether the Plaintiffs can name a similarly-situated male employee who
was treated more favorably, and then OIT forbids the Plaintiffs from publicly
revealing his name. Nevertheless, it is not necessary to publicly identify the male
employee in order to rule on the dispositive motion because the actual name of the
male employee would not appear to be essential to resolve the legal issues presented
by the motion.

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At the same time, if this case goes to public trial, the Court will look to the
parties, particularly OIT, to explain how the Court should balance the right to a
public trial against the privacy rights of the former state employee, especially since
OIT has made its treatment of this particular male employee a central part of its
defense to these claims. For the time being, the Court accedes to OIT’s suggestion
that it grant OIT’s motion in part and allow OIT to substitute “male employee” for
the employee’s initials in order to comply with OIT’s reading of 5 M.R.S. § 7070. The
Court will revisit this issue if the claims persist beyond summary judgment stage.
III.

CONCLUSION
The Court GRANTS in part and DENIES in part State of Maine, Office of

Information Technology’s Motion to Seal (ECF No. 26). The Court GRANTS the
motion insofar as the Office of Information Technology is to substitute “male
employee” for the person’s actual name or his initials in all its Court filings. The
Court DENIES the motion insofar as it requests that the Court seal its motion for
summary judgment, statement of undisputed material facts, and declaration of
James Smith.

Instead of redaction, the Office of Information Technology shall

substitute “male employee” for all references to the male employee’s initials or his
actual name in the publicly-filed documents. This Order shall apply with equal force
to Plaintiffs’ references to the male employee in their filings.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of January, 2018
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