LONG v. LEGGETT & PLATT, INCORPORATED et al

Filing 58

OPINION. Signed by Judge Noel L. Hillman on 2/13/2019. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RANDAL LONG,
Plaintiff,
Civil No. 16-4907 (NLH/KMW)
v.
OPINION
LEGGETT & PLATT,
INCORPORATED,
Defendant.

APPEARANCES:
ROBERT J. HAGERTY
HAGERTY & BLAND-TULL LAW LLC
714 EAST MAIN STREET SUITE 2C
MOORESTOWN, NJ 08057
Attorney for Plaintiff Randal Long.
CHRISTOPHER JAMES GILLIGAN
MICHAEL R. MILLER
MARGOLIS EDELSTEIN
170 S. INDEPENDENCE MALL W.
SUITE 400E
PHILADELPHIA, PA 19106
Attorneys for Defendant Legett & Platt, Incorporated.
HILLMAN, District Judge
This case concerns a claim of retaliation under the New
Jersey Law Against Discrimination (“NJLAD”).

Presently before

the Court is Plaintiff Randal Long’s appeal pursuant to Local
Rule 72.1(c)(1) of a discovery order entered by the Magistrate
Judge assigned to the matter on June 13, 2018 (“Appeal”).

Plaintiff’s Appeal will be granted for the reasons that follow.
BACKGROUND
This Court bases its factual recitation on the parties’
statements of facts, Plaintiff’s Second Amended Complaint
(“SAC”), the at-issue discovery requests and responses, the
transcript of the proceedings held before the Magistrate Judge
on June 8, 2018, and the Magistrate Judge’s June 13, 2018
Opinion and Order (the “Order”).
This is a mixed-motive case brought under NJLAD in which
the Plaintiff alleges he was terminated from Defendant Long &
Platt, Incorporated (“L&P”) in retaliation for reporting a claim
of sexual harassment allegedly committed by another employee,
Robert “Bobby” Keen.

Plaintiff – except for a five-year hiatus

between 1989 and 1994 – worked for L&P from 1982 until his
termination in January 2016.

At the time of his termination,

Plaintiff was Senior Vice President of Sales.

In April 2014,

John Case was hired as President of L&P.
On December 21, 2015, Plaintiff informed Robert Newcombe,
the Senior Vice President of Sales and Marketing, that Keen, an
employee at L&P, was sexually harassing a female employee.

No

action was taken by Newcombe or Case following Plaintiff’s
allegations.

In January 2016, Plaintiff was informed that his

employment was being terminated and he was given a severance
package on January 15, 2016.

Plaintiff claims he was terminated
2

“in retaliation for his reporting the sexually harassing conduct
of Keen, in violation of the New Jersey Law Against
Discrimination.”
Plaintiff filed a complaint in New Jersey state court
against Defendant on May 23, 2016.

The complaint alleged

retaliation and aiding and abetting under the NJLAD, and
requested punitive damages.

The matter was removed to this

Court on August 11, 2016 based on diversity jurisdiction.
Defendants 1 filed a Motion for Judgment on the Pleadings on
February 10, 2017.

Plaintiff filed a Cross-Motion to Amend the

Complaint on March 6, 2017.
This Court’s Opinion and Order on September 27, 2017
dismissed Case from the action, dismissed the aiding and
abetting and punitive damages counts, and granted Plaintiff’s
request to file an amended complaint.

Plaintiff filed the SAC

on October 30, 2017 and L&P answered shortly thereafter.
Discovery ensued.
A discovery dispute arose between the parties, which is the
subject of this appeal, concerning other complaints of sexual
harassment against Keen.

In Plaintiff’s document request number

eight (“Request 8”), Plaintiff requested documents “which

1

Here, the term “Defendants” includes L&P and Case, who was
dismissed via this Court’s September 27, 2017 Opinion and Order
discussed supra.
3

reflect, support, arise from or otherwise relate to: any
complaints of sexual harassment made against Robert “Bobby” Keen
. . . .”

(Hagerty Ltr. 2, Docket No. 48.)

Defendant objected,

asserting Request 8 sought “information outside the relevant
time frame, irrelevant to the claims begin litigated, and not
calculated to lead to admissible evidence.”

(Id.)

The

Magistrate Judge heard argument on this document request on June
8, 2018.
Plaintiff’s theory of Request 8’s relevance is relatively
straightforward.

Plaintiff alleges that Keen had been accused

of sexual harassment several times before Plaintiff brought to
the Defendant’s attention information he received on Keen’s
alleged sexual harassment to Case.

Plaintiff believes that what

happened to him is part of a pattern by L&P of protecting Keen
by retaliating against those who brought forth information on
Keen’s alleged sexual harassment of others.

This pattern,

Plaintiff theorizes, is relevant to L&P’s motive for
retaliation.
On June 13, 2018, the Magistrate Judge issued the Order
determining that Defendant need not produce the documents
outlined in Request 8.
several grounds.

The Court rested this determination on

First, the Magistrate Judge cited this Court’s

Opinion, stating that only circumstantial evidence occurring
between the protected activity and adverse action is relevant to
4

causation.

(Disc. Order 2.)

Second, the Court concluded that

“information concerning other complaints of harassment” is not
relevant to a retaliation claim.

(Id.)

Third, the Magistrate

Judge determined these other complaints would “offer[] little or
no probative value and would strain the proportionality
requirement of Rule 26.”

(Id. at 3.)

The reason: “Plaintiff’s

offered rationale” as to the relevance of these complaints
(discussed supra) required multiple leaps and assumptions that
significantly decreased the documents’ probative value.
On June 27, 2018, Plaintiff erroneously filed the Appeal as
a “Motion to Compel Discovery (Appeal from Magistrate’s
Decision).”

The Clerk placed a quality control message on the

docket, requesting Plaintiff to re-file the Appeal as an “Appeal
of Magistrate Judge Decision to District Court.”
so the following day.

Plaintiff did

The Appeal has been fully briefed by both

parties and is thus ripe for adjudication.
ANALYSIS
A.

Subject Matter Jurisdiction

This Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1332, because there is complete diversity between the
parties and the amount in controversy exceeds $75,000.
B.

Rule 72 Standard

A United States Magistrate Judge may hear and determine any
non-dispositive pretrial matter pending before the court
5

pursuant to 28 U.S.C. § 636(b)(1)(A).
72.1(a)(1).

See also L. Civ. R.

Federal Rule of Civil Procedure 72 provides

litigants with a mechanism to object to a non-dispositive ruling
made by a magistrate judge.

A party may file a timely objection

to a magistrate judge’s order with the district judge on the
case.

FED. R. CIV. P. 72(a); L. Civ. R. 72.1(c)(1).

The standard

of review of a magistrate judge’s decision depends on whether
the motion is dispositive or non-dispositive.

A district court

judge will only reverse a magistrate judge’s opinion on nondispositive matters if it is “clearly erroneous or contrary to
law.”

28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); L. Civ. R.

72.1(c)(1)(A).
Under this standard, a finding is clearly erroneous when
“although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”

S. Seas

Catamaran, Inc. v. M/V Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988)
(citation omitted).

“A district judge’s simple disagreement

with the magistrate judge’s findings is insufficient to meet the
clearly erroneous standard of review.”

Andrews v. Goodyear Tire

& Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J. 2000).

A ruling

is contrary to law if the magistrate judge has misinterpreted or
misapplied applicable law.

Gunter v. Ridgewood Energy Corp., 32

F. Supp. 2d 162, 164 (D.N.J. 1998).
6

The party filing the notice

of appeal bears the burden of demonstrating that the magistrate
judge’s decision was clearly erroneous or contrary to law.
Exxon Corp. v. Halcon Shipping Co., Ltd., 156 F.R.D. 589, 591
(D.N.J. 1994).
Where the non-dipositive matter is a discovery motion, as
here, a magistrate judge’s decision “is entitled to great
deference and is reversible only for abuse of discretion.”
Kresefsky v. Panasonic Communs. & Sys. Co., 169 F.R.D. 54, 64
(D.N.J. 1996).

An abuse of discretion occurs:

when the judicial action is arbitrary, fanciful or
unreasonable, which is another way of saying that
discretion is abused only where no reasonable man would
take the view adopted by the trial court. If reasonable
men could differ as to the propriety of the action taken
by the trial court, then it cannot be said that the trial
court abused its discretion.
Richards v. Johnson & Johnson, Inc., No. 05-3663, 2008 U.S.
Dist. LEXIS 14131, at *5 (D.N.J. Feb. 26, 2008) (quoting Lindy
Bros. Builders v. Am. Radiator & Standard Sanitary Corp., 540
F.2d 102, 115 (3d Cir. 1976)).
C.

Rule 26 Standard

The scope of discovery in a federal action has been
described as “unquestionably broad.”

Zampetis v. City of Atl.

City, No. 51-cv-1231 (NLH/AMD), 2018 U.S. Dist. LEXIS 187937, at
*6-7 (D.N.J. Nov. 2, 2018) (citing Bayer AG v. Betachem, Inc.,
173 F.3d 188, 191 (3d Cir. 1999)).

Federal Rule of Civil

Procedure 26(b)(1), which generally governs the scope of
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discovery, states:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the
needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery
in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need
not be admissible in evidence to be discoverable.
FED. R. CIV. P. 26(b)(1).

“District Courts have wide discretion

in matters of case management and discovery.”

Hill v. Barnacle,

No. 17-2448, 2018 U.S. App. LEXIS 25944, at *4 (3d Cir. Sept.
13, 2018) (citing ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254,
268 (3d Cir. 2012)).

It is under these legal standards that

this Court will review the Order.
D.

Plaintiff’s Rule 72 Objection

Before this Court addresses Plaintiff’s substantive
objection, this Court will address Defendant’s contention that
the Appeal was untimely filed.
merit.

Defendant’s argument is without

The Order was filed on June 13, 2018.

Under Local Rule

of Civil Procedure 72.1(c)(1)(A), a party must appeal a nondispositive determination of a magistrate judge within fourteen
days after the party has been served with a copy of the order.
Here, that means an appeal is only timely if filed by June
27, 2018.

Plaintiff’s counsel filed the Appeal on June 27,

8

2018, but erroneously marked it on the docket as “Motion to
Compel Discovery (Appeal from Magistrate’s Decision).”

The

Clerk posted a quality control message instructing Plaintiff’s
counsel on the proper way to file the Appeal (using the “Appeal
of Magistrate Judge Decision to District Court” title, instead
of the “Motion to Compel” title).

Plaintiff’s counsel re-filed

the same document the next day with the new title.

The Appeal

was thus timely filed, even though incorrectly titled on the
docket.

Accordingly, this Court will consider the merits of

Plaintiff’s objection. 2
Plaintiff brings one count against Defendant: NJLAD
retaliation.

“To establish a prima facie case of discriminatory

retaliation, plaintiff[] must demonstrate that: (1) [he] engaged
in a protected activity known by the employer; (2) thereafter
[his] employer unlawfully retaliated against [him]; and (3)
[his] participation in the protected activity caused the
retaliation.”

Craig v. Suburban Cablevision, 660 A.2d 505, 508

(N.J. 1995); accord Kachmar v. Sungard Data Sys., 109 F.3d 173,
177 (3d Cir. 1997).

2

Defendant’s citation to Schmidt v. Mars, Inc. is equally
unavailing. No. 09-3008 (PGS), 2011 U.S. Dist. LEXIS 63961
(D.N.J. June 13, 2011). In that case, the appeal was filed
months late and no good reason was provided for the delay in the
appeal. Id. at *7-8.
9

Each of the arguments made in support of the Appeal are
considered in turn.
a. Whether Circumstantial Evidence within Only a
Restricted Time Period is Relevant to this Retaliation
Claim
First, the appealed Order cited this Court’s September 27,
2017 Opinion for the proposition that “a ‘plaintiff may
demonstrate a causal link [between a protected activity and an
adverse action] by producing circumstantial evidence of ‘ongoing
antagonism or ‘retaliatory animus’ in the intervening period
between her complaints and the adverse action.”

(The Order 2

(alterations and emphasis in original).)
Plaintiff argues that this is not a limit to what
circumstantial evidence may be used in a retaliation case, but
merely what is usually presented and considered by courts.
Defendant does not appear to present argument specifically on
this matter, but generally asserts the type of evidence
Plaintiff wishes to discover is per se irrelevant under
controlling law. 3
This Court agrees with Plaintiff characterization of the
applicable law and holds that to the extent a narrow view of the
scope of relevant evidence led to the ruling below it was in
error.

The Order accurately quoted this Court and the Hargrave

3

That particular point will be discussed in-depth in the next
section of this Opinion.
10

case.

However, the Court does not read Hargrave to hold that

only evidence of ongoing antagonism between the time of the
complaint and the adverse action is relevant.

Instead, the

court in Hargrave stated: “the case law has set forth few limits
on the type of evidence which might suffice to establish a prima
facie showing of causation.”

Hargrave v. Cty. of Atl., 262 F.

Supp. 2d 393, 425 (D.N.J. 2003).

Thus, to the extent that the

Order is based on grounds that no circumstantial evidence
besides that which occurred after a complaint was made is
relevant in a retaliation case, this Court finds that part of
the Order is contrary to law and therefore an abuse of
discretion.
b. Whether Other Complaints of Harassment are Relevant to
this Retaliation Claim
Second, the Order stated that information concerning other
complaints of harassment against Keen are irrelevant to the
retaliation claim in this case.

Plaintiff, citing case law

which will be discussed in-depth infra, argues this portion of
the Order is incorrect based on his theory of motive.

As

explained supra, Plaintiff believes that Keen was accused of
sexual harassment before he lodged his complaint and that L&P
may have retaliated against other complainants.

Additionally,

these other complaints and how they were handled by L&P,
Plaintiff argues, may be used to show motive.

11

Defendant argues

Plaintiff’s case law is inapposite and his theory concerning
L&P’s motives is unsupported by any case law.
The Court agrees with the Plaintiff that the law supports
disclosure of the requested discovery.

In the interests of

efficiency, this Court will address the case most heavily relied
upon by Plaintiff, Hurley v. Atlantic City Police Department,
174 F.3d 95 (3d Cir. 1999), cert. denied, 528 U.S. 1074 (2000).
This case concerns sexual harassment and retaliation claims made
by a female officer against the Atlantic City Police Department
(“ACPD”) under both the NJLAD and Title VII.

Id. at 102, 111.

The Third Circuit was tasked, in part, with determining
whether the trial court committed an abuse of discretion when it
ruled that evidence of prior harassment against other females
(and reports of that harassment to superiors) was relevant to
the plaintiff’s retaliation claims under Federal Rule of
Evidence 401 and 403.

Id. at 109-10.

As is apparent from the

procedural posture, the Third Circuit was examining evidence
produced at trial, not a discovery dispute.

In coming to the

conclusion that the trial court had not committed an abuse of
discretion, the Third Circuit ruled that testimony of other
women’s experiences, the attitudes of male officers towards
women, and the victim’s past experiences of harassment were
“relevant to her . . . retaliation claims.”

12

Id. at 109, 111.

Specifically, the Third Circuit found the testimony of
other individuals who were retaliated against for reporting
improper conduct held a “high probative value.”

Id. at 112.

More specifically, the Third Circuit held that “pervasive sexual
harassment makes retaliation claims more credible, because
harassers may be expected to resent attempts to curb their male
prerogatives.”

Id. at 111 (citing Glass v. Phila. Elec. Co., 34

F.3d 188, 195 (3d Cir. 1994)).
Defendant responds by stating Hurley is distinguishable
because it involved both discrimination and retaliation claims.
The Court notes that Defendant is factually correct, but its
reasoning is faulty.

As discussed supra, the Third Circuit

found that the type of evidence requested in this case is
relevant to a claim of retaliation.

First, this Court is

unaware of any case law that holds that only a direct victim of
discrimination may pursue a retaliation claim. 4

Second, the

Hurley case presents stark similarities to this action.

4

In

Indeed, the law is to the contrary. See, e.g., Marley v.
Postmaster Gen. of U.S., --- F. App’x ---, No. 17-2149, 2018
U.S. App. LEXIS 27134, at *2 (3d Cir. Sept. 21, 2018) (affirming
decision of District Court in case where only a retaliation
claim was asserted); cf. Burlington N. & Santa Fe Ry. V. White,
548 U.S. 53, 59 (2006) (explaining that “Title VII’s
antiretaliation provision forbids employer actions that
‘discriminate against’ an employee (or job applicant) because he
has ‘opposed’ a practice that Title VII forbids or has ‘made a
charge, testified, assisted, or participated in’ a Title VII
‘investigation, proceeding, or hearing.’” (quoting § 2000e-3(a))
(emphasis added)).
13

Hurley, like here, the plaintiff wished to present (and did
present) testimony from two non-parties who were subject to
retaliation for reporting discrimination.

This is exactly the

type of evidence Plaintiff requests, albeit in different form.
Whether Plaintiff misquoted another Third Circuit case does not
affect this Court’s decision 5, as it is duty-bound to follow the
Third Circuit decision in Hurley which plainly supports use of
such evidence at trial.

It follows that if you cannot discover

it, you cannot use it.
Accordingly, this Court finds this part of the Order is
contrary to the law and therefore an abuse of discretion.

5

This Court finds that Glass v. Phila. Elec. Co., 34 F.3d 188,
195 (3d Cir. 1994) further supports the Court’s decision in this
Opinion. The Glass court specifically found “that evidence of
the nature of the harassment complaints and the defendant’s
disposition of those complaints [is] highly relevant to [a]
plaintiff’s case because ‘an atmosphere of condoned sexual
harassment in a workplace increases the likelihood of
retaliation for complaints in individual cases.’” Id. (quoting
Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155 (8th Cir.
1990)). Again, this case is directly on-point to Plaintiff’s
request here. It appears Aman v. Cort Furniture Rental Corp.,
which Defendant cites for the proposition that evidence of prior
harassment (and whether it was in fact harassment) is irrelevant
to a retaliation claim, does not reveal the entire picture. 85
F.3d 1074, 1085 (3d Cir. 1996). In fact, Aman cites just a page
later the same quote from Glass this Court cites supra. Id. at
1086. The more specific ruling controls the Court here.
14

c. Whether the Information Sought would Provide Little or
No Probative Value and Would Strain Rule 26’s
Proportionality Requirement
Third, the Order stated that Plaintiff’s theory of motive
was “tenuous at best.”

Specifically, the Order stated

Plaintiff’s theory would require an evaluation of the merits of
each complaint of harassment, whether or not the complaint was
“covered up,” and, if covered up, whether it was covered up to
protect Keen.

The Order found that the probative nature of this

evidence was therefore of little value which meant it was
disproportionate to the needs of this case.

Plaintiff argues

that, based on the cases discussed supra, this type of evidence
is highly probative of a retaliation claim.

Defendant

essentially restates the reasoning from the Order.
As found by this Court supra, it appears clear that the
Third Circuit condones discovery of this type of information for
two purposes.

First, the Third Circuit approves of proving

motive in a retaliation claim by showing that non-party
complainants were retaliated against.

Evidence supporting this

theory – according to the Third Circuit – is highly probative.
Accordingly, the part of the Order denying discovery on these
grounds is contrary to law and an abuse of discretion.

On these

grounds alone, this Court finds that Defendant must produce all
documents responsive to Plaintiff’s request.

15

Second is the theory addressed more directly by the Order
and prominently argued by Plaintiff.

A plaintiff may prove

motive for a retaliation claim by presenting evidence which
shows the nature and disposition of prior harassment complaints
against the harasser at-issue.

Again, according to the Third

Circuit, this type of evidence is highly probative of a
retaliation claim.

While this Court agrees with the Order to

the extent it stands for the proposition that Plaintiff need not
prove an underlying discrimination claim or any previous
discrimination claims, it finds the Order is contrary to law and
an abuse of discretion because it denies discovery which relates
to the nature and disposition of prior harassment claims
asserted against Keen. 6
It is not the Court’s role at this juncture to evaluate the
merits of Plaintiff’s theory of liability nor whether
Plaintiff’s theory will end up being proven by competent
evidence.

The Court has great respect for the Magistrate Judge

and the deliberate and considered Order she penned.

Plaintiff’s

theory may end as mere rumor, swallowed up by a wave of

6

The Court notes also that it is not at all clear that Plaintiff
would have to prove, or would even be allowed to prove, the
merits of the other allegations. The relevant issue is less
whether those complaints could be proven and more whether the
Defendant retaliated against Plaintiff in an effort to frustrate
any investigation into Keen’s conduct.
16

documents from L&P which show the contrary.

But, the Court has

an obligation to follow the Third Circuit’s instructions and the
standards espoused under the Federal Rules of Civil Procedure.
The Defendant is correct that the Magistrate Judge’s
evaluation of the competing positions was thoughtful, measured,
and thorough.

However, because this Court concludes that

binding authority authorizes and even encourages discovery of
the kind sought, a granting of the appeal is required. 7
CONCLUSION
For the reasons expressed herein, this Court will grant
Plaintiff’s Appeal.
An appropriate Order will be entered.

Date: February 13, 2019
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

7

The Court also notes Defendant’s concerns over revealing the
identities of those Keen allegedly harassed. While this is no
reason to preclude production of relevant documents, the parties
should ensure that the stipulated protective order in this case
adequately allays these concerns. To the extent the parties are
unfamiliar, they should also be mindful that documents and
briefs are properly sealed or redacted per the Local Civil Rules
of Procedure.
17