SALAMONE v. CARTER'S RETAIL, INC.

Filing 39

MEMORANDUM OPINION filed. Signed by Chief Judge Garrett E. Brown, Jr on 4/14/2011. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
)
MARYJO SALAMONE,
)
)
Plaintiff,
)
Hon. Garrett E. Brown, Jr.
)
v.
)
Civil Action No. 09-5856 (GEB)
)
CARTER’S RETAIL, INC.,
)
MEMORANDUM OPINION
)
Defendant.
)
__________________________________________)
BROWN, Chief Judge:
This matter comes before the Court on the appeal (Doc. No. 36) filed by Defendant
Carter’s Retail, Inc. (“Carter’s”) from Magistrate Judge Douglas E. Arpert’s January 28, 2011
opinion and order (Doc. No. 35, hereinafter “January 28 Order”) denying Carter’s Motion for a
Protective Order. For the following reasons, the Court will affirm Magistrate Judge Arpert’s
order and deny Carter’s appeal.
I.

BACKGROUND
In his January 28 Order, Magistrate Judge Arpert considered Carter’s Motion for a

Protective Order with respect to Plaintiff MaryJo Salamone’s Interrogatory Nos. 19 and 25.
Plaintiff filed her Complaint in state court on October 6, 2009, which Defendant subsequently
removed to this Court. (January 28 Order at 1; see also Doc. No. 1.) Plaintiff’s Complaint
alleges: (1) wrongful termination in violation of company policy; (2) age discrimination and
disability discrimination in violation of the New Jersey Law Against Discrimination; and
(3) defamation. (January 28 Order at 1; see also Compl.) Specifically, Plaintiff alleges that

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Defendant’s listed reason for termination was “timecard fraud,” when she was “working off the
clock, or working about five hours without charging Defendant for her time[.]” (Id. at 2 (internal
quotations omitted); see also Compl. ¶ 15.)
In his January 28 Order, Magistrate Judge Arpert began his analysis by noting that to
prove a claim of age discrimination under the NJLAD, a plaintiff “may show that similarly
situated individuals outside the plaintiff’s class were treated more favorably.” (January 28 Order
at 18 (quoting Grassmyer v. Shred-It USA, Inc., 2010 WL 3330102, at *8 (3d Cir. 2010))
(additional citations omitted).) Magistrate Judge Arpert stated that “Courts have developed
‘case-specific definitions’” to determine who is deemed a “similarly situated employee.” (Id.)
Further, Magistrate Judge Arpert found that, in general, “the applicable discovery parameters
must be broader than the specific individualized facts upon which . . . claims are based because
of the nature of the proofs required to demonstrate unlawful discrimination which may often be
indirect or circumstantial. (Id. at 19 (quoting Rodriquez v. Am. Tel. & Telegraph Co., 1991 U.S.
Dist. LEXIS 296, at *5–6 (D.N.J. 1991)) (additional citation omitted).) After considering
Plaintiff’s specific claim in this case, Magistrate Judge Arpert held that “‘similarly situated
individuals’ in this litigation include Defendant’s employees who were required to comply, and
were disciplined or terminated for failing to do so, with the same timekeeping policies applied
with respect to Plaintiff’s termination.” (Id.) Previously, Magistrate Judge Arpert had limited
discovery to the disciplinary records of Defendant’s East region, which consists of 119 stores
spanning 12 Northeast and Mid-Atlantic states. (See id. 10, 20.)
Defendant now appeals, arguing that Magistrate Judge Arpert’s interpretation of
Interrogatory Nos. 19 and 25 and definition of a “similarly situated employee” is too broad in
scope. (Def.’s Br. at 1.) Defendant argues that, although Magistrate Judge Arpert narrowed the
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geographical scope of Plaintiff’s discovery request, the expansion of the subject matter of the
discovery “greatly increase the time and effort that would be required to comply with [the
January 28 Order].” (Id. at 2.) More specifically, Defendant seeks relief from the January 28
Order on the grounds that: “(1) Plaintiff’s discovery requests exceed all reasonable bounds of
who can be considered ‘similarly situated’ to Plaintiff for making out a claim of age
discrimination, and include individuals who have different supervisors, who work in different
jobs in different locations; and (2) it would be burdensome, oppressive, and unreasonable to
require [Defendant] to provide the requested information.” (Id.)
II.

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72(a), and Local

Civil Rule 72.1(a), a United States Magistrate Judge may hear non-dispositive motions. On
appeal, a district court may modify or set aside a magistrate judge’s non-dispositive order if the
ruling was “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); L. Civ. R. 72.1(c)(1)(A);
see also Haines v. Liggett Group Inc., 975 F.2d 81, 91 (3d Cir. 1992); Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986). A ruling 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.” Dome Petroleum Ltd. v. Employers
Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). A magistrate judge’s order is contrary to law “when the magistrate
judge has misinterpreted or misapplied the applicable law.” Doe v. Hartford Life & Accident Ins.
Co., 237 F.R.D. 545, 548 (D.N.J. 2006) (citing Pharm. Sales & Consulting Corp. v. J.W.S.
Delavau Co., 106 F.Supp.2d 761, 764 (D.N.J. 2000)). “A magistrate judge’s ruling on a
non-dispositive matter such as a discovery motion is ‘entitled to great deference and is reversible
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only for abuse of discretion.’” Eisai Co. v. Teva Pharms. USA, Inc., 629 F. Supp. 2d 416, 433-34
(D.N.J. 2009) (quoting Kresefsky v. Panasonic Commc'ns & Sys. Co., 169 F.R.D. 54, 64 (D.N.J.
1996)). This deferential standard “is particularly appropriate in the case where the magistrate
judge managed the case from the outset, and thus has a thorough knowledge of the proceedings.”
Phillips v. Greben, No. 04-5590, 2006 WL 3069475, at *4 (D.N.J. Oct. 27, 2006). “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.” Leap Sys., Inc. v. Moneytrax, Inc., No. 05-1521, 2010 WL 2232715, at *3 (D.N.J.
June 1, 2010) (internal quotations and citations omitted).
After careful consideration of Magistrate Judge Arpert’s Order denying Defendant’s
motion for a protective order, and the parties’ briefing on appeal, this Court concludes that
Magistrate Judge Arpert did not abuse his discretion. Federal Rule of Civil Procedure 26(b)(1)
provides that “parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense . . . [and] the court may order discovery of any matter relevant to the
subject matter involved in the action.” This relevancy standard has been “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978). “[S]ince the precise boundaries of the Rule 26 relevance standard will depend on the
context of the particular action, the determination of relevance is within the district court’s
discretion.” Barnes Found. v. Twp. of Lower Merion, No. 96-372, 1996 WL 653114, at *1 (E.D.
Pa. Nov. 1, 1996); see also DeMasi v. Weiss, 669 F.2d 114, 122 (3d Cir. 1982).
Magistrate Judge Arpert had previously narrowed the scope of Plaintiff’s discovery
requests, “tailor[ing them] to the specifics of the case.” (Id. at 20.) Initially, Plaintiff sought
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information on “any and all other employees who were terminated by [Defendant] within one
year before or after October 31, 2008” and “any and all other employees who were either
terminated for timecard fraud or who were over age forty and who were terminated by
[Defendant] for any other reason within one year before or after October 31, 2008.” (Id. at 4.)
Magistrate Judge Arpert narrowed the geographical scope of Plaintiff’s discovery request to the
stores and employees located within Defendant’s East Region, and defined “similarly situated
employees” to mean “full-time employees who worked as store managers, assistant managers,
sales associates, stock associates, and supervisors who were disciplined or terminated for
‘working off the clock,’ ‘timecard fraud,’ and/or any other timekeeping infraction.” (Id. at 20.)
Defendant argues that Magistrate Judge Arpert disregarded a crucial aspect to the definition of a
“similarly situated employee.” (Def.’s Br. at 8.) Defendant contends that the proper definition of
a “similarly situated employee” consists of those who “(1) dealt with the same supervisor, (2)
[has] been subject to the same standards, (3) and [has] engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the employer’s
treatment of them for it.” (Id. at 7 (quoting Geaney v. Computer Sciences Corp., No. 03-2945,
2005 WL 1387650, at *3 (D.N.J. 2005)).) Therefore, Defendant maintains that Magistrate Judge
Arpert, in not limiting the discovery request to those employees who reported to the same
supervisor, unreasonably enlarged the scope of discovery. (Id. at 8.) However, Magistrate Judge
Arpert correctly pointed out that courts within the Third Circuit have “developed case-specific
definitions” of a “similarly situated employee” in employment discrimination cases. (January 28
Order at 18 (collecting cases).) Further, Magistrate Judge Arpert did not err in finding that the
applicable scope of discovery must be broader in the context of unlawful discrimination cases
such as this, because plaintiffs often rely on “indirect or circumstantial” proof of discrimination.
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(Id. at 19–20.) The Court specifically notes that one of Plaintiff’s claims expressly challenges
her termination under the corporate disciplinary policy. (Compl. Ct. I.) Thus, the scope of
Plaintiff’s Complaint exceeds the limited circumstances of her termination at a particular store,
and invites inquiry into Defendant’s broader application of its corporate disciplinary policies. In
light of this claim, the Court agrees with Magistrate Judge Arpert that Carter’s treatment of other
employees subject to the same time-keeping requirements is relevant.
The Court concludes that Magistrate Judge Arpert did not abuse his discretion in
concluding that “the probative value of production [under this definition of a ‘similarly situated
employee’] outweighs the burden and/or expense imposed as a consequence thereof.” (January
18 Order at 21.) Magistrate Judge Arpert properly tailored the discovery to the circumstances of
this case by limiting the geographic scope of the discovery. Because Defendant failed to
demonstrate that the January 28 Order was clearly erroneous, contrary to law, or an abuse of
discretion, the Court will affirm Magistrate Judge Arpert’s decision and deny Defendant’s
appeal.
III.

CONCLUSION
For the foregoing reasons, this Court will affirm Magistrate Judge Arpert’s January 28,

2011 Order (Doc. No. 35) and deny Defendant’s appeal (Doc. No. 36). An appropriate form of
order accompanies this Memorandum Opinion.

Dated: April 14, 2011
/s/ Garrett E. Brown, Jr.
GARRETT E. BROWN, JR., U.S.D.J.

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