WAHAB v. STATE OF NEW JERSEY DEPARTMENT OF ENVIROMENTAL PROTECTION

Filing 127

MEMORANDUM OPINION filed. Signed by Magistrate Judge Tonianne J. Bongiovanni on 10/30/2017. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ATIYA WAHAB,

Civil Action No. 12-6613 (BRM)

Plaintiff,
v.

MEMORANDUM OPINION

STATE OF NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION et al,
Defendant.

BONGIOVANNI, Magistrate Judge
This matter has been opened to the Court upon Motion (Docket Entry No. 117) by Plaintiff
Atiya Wahab (“Plaintiff”) seeking an Order compelling the production of facts and documents
regarding other claims of discrimination/retaliation.

Defendants State of New Jersey

Department of Environmental Protection (“NJDEP”), Steven Maybury, Gwen Zervas and State of
New Jersey (collectively, “Defendants”) oppose Plaintiff’s motion (Docket Entry No. 120). The
Court has fully reviewed the submissions in support of and in opposition to Plaintiff’s motion.
For the following reasons, Plaintiff’s Motion to Compel is DENIED.
I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff’s Amended Complaint alleges violations of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. §2000e to 17, the New Jersey Law Against Discrimination, N.J.S.
§10:5-1 to 49, the New Jersey Civil Rights Act, N.J.S. §10:6-1 to 2, and asserts other statutory and
common law claims. Pl.’s Second Am. Compl, ¶13, Docket Entry No. 47. Plaintiff, a woman of
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Bengali origin, was transferred from the New Jersey Department of Health and began her
employment with Defendant NJDEP in September of 1989. Id. ¶2, ¶18. Plaintiff alleges that
while serving as a Technical Coordinator for the Site Remediation Program, her supervisor, Frank
Camera promised her a promotion and told her that it was being processed. Id. ¶23. After
Camera was replaced, however, employees within the NJDEP provided Plaintiff with conflicting
reports about the state of her promotion, and ultimately, she was not promoted, leading her to file
an internal complaint. Id. ¶¶24-25. When Plaintiff was promoted to Site Mitigation Specialist I
after several months, she claims that she was not provided with the requisite back pay or seniority,
and filed a claim with the Equal Employment Opportunity Commission (“EEOC”) for
discrimination. This action reached a settlement in 2005. Id. ¶¶ 25-26. As a Site Mitigation
Specialist, Plaintiff claims that she suffered discriminatory, retaliatory and harassing treatment by
her superiors. Id. 27-28. As a result, Plaintiff sought and received a transfer to the Bureau of
Operation and Maintenance and Management (“BOMM”). Id. ¶¶31-32.
At the BOMM, Plaintiff claims she was demoted beneath employees with lesser experience,
but was later promoted in February 2011 to a supervisory position in the Bureau of Case
Management, under Defendant Steve Maybury (“Maybury”). Id. ¶¶ 33-35. In mid-2011, Plaintiff
claims that she was told to avoid Maybury after he told her supervisor that he did not want to speak
to her. Id. ¶38. After Plaintiff was passed over for transfers, Defendant Gwen Zervas (“Zervas”)
became Plaintiff’s supervisor. Plaintiff claims that she was “verbally assaulted” by Zervas, who
voiced her displeasure with working with Plaintiff, and continued to mistreat her throughout 2011.
Id. ¶¶ 42-53. After unsuccessfully petitioning for a transfer, Plaintiff spoke with defendant Pam
Lyons, director of the NJDEP’s Equal Employment Opportunity Office about this treatment. Id.
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¶57.
Plaintiff filed her initial complaint against Defendant State of New Jersey Department of
Environmental Protection (“Defendant NJ DEP”) on October 19, 2012. (Docket Entry No. 1).
Defendant NJ DEP filed a motion to dismiss on February 15, 2013. (Docket Entry No. 6). On
July 8, 2013, the District Court denied Defendant NJ DEP’s motion to dismiss and gave Plaintiff
30 days to file an amended complaint. (Docket Entry No. 9). Plaintiff filed her amended
complaint on August 6, 2013. (Docket Entry No. 11).
The Court held an initial scheduling conference on September 30, 2013 and issued the first
case management schedule on October 1, 2013. (Docket Entry No. 17). This matter has been
actively litigated ever since. The parties have filed 11 motions. (Docket Entry Nos. 3, 6, 34, 68,
76, 85, 97, 99, 102, 117, 121). The Court has held 12 status conferences and has entered 15 orders
regarding discovery. (Docket Entry Nos. 40, 50, 60, 73, 74, 75, 82, 83, 95, 98, 103, 105, 109, 113,
116). In Its June 5, 2017 letter order, the Court gave Plaintiff permission to file the instant
motion. The Court noted, however, that Plaintiff should address why this request for information
is coming five years into the litigation and that Plaintiff should also address how the request is
narrowly tailored to seek relevant information. (Docket Entry No. 113).
Plaintiff filed the instant motion on June 24, 2017 seeking discovery of documents pertaining
to claims of “discrimination and harassment” made to the NJDEP starting from three years before
Plaintiff made her first claims of discrimination/harassment. Plaintiff also seeks an order “that
the direction not to answer deposition questions or provide discovery based about other claims of
discrimination and retaliation is improper.” Pl.’s Br. in Supp. of Mot. at 4.
Relying upon federal law, Plaintiff cites cases such as Fuentes v. Perskie, 32 F.3d 759, 765 (3d
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Cir. 1994) and Glass v. Philadelphia Electric Co., 34 F.3d 188, 195 (3d Cir. 1994) to support her
assertion that previous instances of unfair treatment towards a particular protected class gives
evidence of a pattern of discrimination and provides support for the validity of a plaintiff’s claims
to a jury. Id. at 1-2. Focusing on the State of New Jersey’s support of such discovery in claims
against State agencies, Plaintiff cites to the “New Jersey State Policy Prohibiting Discrimination in
the Workplace” and its requirement that “Each State Agency is responsible for designating an
individual or individuals to receive complaints of discrimination/harassment, investigating such
complaints, and recommending appropriate remediation of such complaints.” Id. at 3.
In response, the Defendants argue that the State should not be compelled to provide documents
related to previous EEO cases filed with the NJDEP. Defendants note that since Plaintiff’s initial
complaint of discrimination was filed on May 8, 2004, Plaintiff is seeking more than thirteen years
of confidential information. Defs.’ Opp’n. Br. at 2. Emphasizing that the request for such files is
both late and overly-broad, the crux of Defendants’ opposition comes in reference to the limited
discoverability of such confidential documents. Id.at 3.
Plaintiff’s motion seeks production of confidential personnel files and confidential EEO
complaints and investigations of other employees. Defendants contend that “[w]ere this Court to
grant Plaintiff’s request to compel EEO files, there would be an irrevocable compromise of
essential privacy and confidentiality interests of employees . . .”. Defendants further note that
release of personnel records of other employees implicates the same concerns. Defs.’ Opp’n. Br.
at 3. Defendants first assert that when assessing a request for confidential information state law
should take precedence over federal law.

“In a civil case, state law governs privilege regarding a

claim or defense for which state law supplies the rule of decision.” Id. at 3, citing to Federal Rule
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of Evidence 501. Defendants state that the Courts recognize a need to protect the confidential
information of others, balanced with the Court’s need to protect against the plaintiff’s need for
such information. Defs’ Opp’n Br. at 3 (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 548
(1997)).
Defendants contend that the files sought by Plaintiff, namely the documents related to
previous claims of “discrimination and retaliation” brought against the NJDEP, are confidential
documents that may not be transferred into the Plaintiff’s possession without first being subject to
an in camera review. First, the Defendants assert that EEO files for previous cases of
discrimination or retaliation are governed by N.J.A.C. 4A:7-3.1. Specifically, Defendants point to
a specific section that requires that “[a]ll complaints and investigations [be] handled, to the extent
possible, in a manner that will protect the privacy and interests of those involved.” N.J.A.C.
4A:7-3.1(j) (emphasis added). In determining the discoverability of such investigative reports, the
Defendants assert that the Court must balance discovery on (1) plaintiff’s ability to obtain such
information elsewhere; (2) the degree of impact that denying such discovery will have on the
plaintiff’s claim; and (3) the impact that the discovery would have on the State’s investigation of
the issue. Defs.’ Opp’n Br. at 7 (citing McClain v. Coll. Hosp., 99 N.J. 346, 351 (1985)). While
such information may be discovered, the Defendants further assert that the request must be
relevant before allowing it to be discovered. Id. (citing K.S. and B.S. v. ABC Prof’l. Corp., 330 N.J.
Super. 288, 299 (App. Div. 2000). Defendants declare that Plaintiff’s mere proclamation that the
EEO information may be relevant is insufficient to compel this information under established New
Jersey Law. Id.
In addition, Defendants argue that employees should not be required to discuss “personnel
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information” related to any claim before the NJDEP other than those brought by the Plaintiff. Id. at
8. Like EEO files, Defendants assert that Courts have routinely found personnel files to be
confidential, often not requiring a Confidentiality Order to be protected, and require evidence of
relevance to the case at bar before being discovered. Id. at 8-9 (citing U.S. EEOC v. Schrager,
2000 U.S. Dist. LEXIS 21501, *8 (C.D.C.A. 2000). Removed from the general discovery of
documents under the Open Public Records Act by Executive Order No. 9, the Court has sought to
protect individuals from having personal information within their personnel files released, with the
subsequent Executive Order No. 11 preventing the State from conveying personnel information to
anyone without the official capacity to examine it. Defs.’ Opp’n. Br. at 9.
II.

ANALYSIS
The Court has fully reviewed and considered all arguments raised by the parties. The Court

has broad discretion in deciding discovery issues such as that raised by the parties here. See
Gerald Chamles Corp. v. Oki Data Americas, Inc., Civ. No. 07-1947 (JEI), 2007 WL 4789040, at
*1 (D.N.J. Dec. 11, 2007) (stating that it is “well-settled that Magistrate Judges have broad
discretion to manage their docket and to decide discovery issues[.]”) Indeed, it is well settled that
the appropriate scope of discovery and the management of requests for discovery are left to the
sound discretion of the Court. See Salamone v. Carter’s Retail, Inc., Civil Action No. 09-5856
(GEB) 2011 WL 310701, *5 (D.N.J. Jan. 28, 2011); In re Fine Paper Antitrust Litig., 685 F.2d
810, 817 (3d Cir. 1982) (finding that conduct of discovery is committed to sound discretion of
Court).
The Court finds that Plaintiff’s request is untimely. If, as Plaintiff contends, evidence of other
claims of discrimination are so fundamental to Title VII then it begs the question of why Plaintiff
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waited so long to seek to compel production of this information.

The Court recognizes that the

Plaintiff acted pro se for a period of time. During that time, however, Plaintiff actively engaged
in discovery and participated in conferences. Moreover, once Plaintiff advised that she was
retaining counsel and after Donald F. Burke, Esq. (“Burke”), filed a notice of appearance on July
12, 2014, the Court conducted a telephone conference to address that status of the case. (Docket
Entry No. 29, 30). Plaintiff was given an opportunity to move to amend the complaint. Plaintiff
was also afforded additional time for discovery. Plaintiff had sufficient time to pursue the
discovery now sought.
In 2014, Plaintiff sought discovery of complaints of other employees alleging hostile
environment workplace and/or employment discrimination. To which Defendants objected.
Defendant's 2/16/2015 response to Plaintiff's Request to Produce No. 33; Docket Entry No. 123-1,
Ex. A at RFP Response 33. Plaintiff never raised any issue regarding this objection nor did
Plaintiff pursue the discovery requested until recently. Plaintiff waited THREE years before
raising this issue with the Court. Most notably, when it was raised the parties were in the midst of
conducting depositions and endeavoring to complete what appeared to be the remaining few.
Indeed, the Court was actively involved in the scheduling of what depositions remained.1 Simply
put, it appeared that discovery was wrapping up. Plaintiff has had ample time to seek to compel
the requested discovery and should have pursued this discovery sooner. Based on undue delay in
raising this issue, the motion is denied.
The Court will nonetheless address the substance of Plaintiff’s request. Plaintiff requests
While the Court generally avoids making assumptions, it is inconceivable that if Plaintiff’s request was granted,
even if narrowly tailored, one or both parties would seek to reconvene or pursue depositions to address the contents of
the discovery. Doing so would, for a myriad of reasons, be objectionable (it would result in delaying an already 5
year old case; it would be costly; it would be unfair to witnesses who had already been deposed).
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production of more than thirteen years of “discrimination and harassment” complaints. Plaintiff
does nothing to limit the scope, e.g. by time frame, supervisors or divisions within the agency or
specific claims. Not only is Plaintiff’s request overbroad, it is excessive. The cases upon which
Plaintiff relies, does little to advance Plaintiff’s argument. In West v. Philadelphia Electric Co.,
for example, the Third Circuit held that the district court erred in limiting discovery to within the
300-day filing period and for imposing a “same actor, same conduct” requirement for
admissibility. 45 F.3d 744, 754 (3d Cir. 1995). In West, unlike here, the discovery which the
Third Circuit found had been impermissibly excluded was limited in nature and contemporaneous
in time. Here Plaintiff seeks expansive information spanning over a decade.
The other cases upon which Plaintiff relies merely note that evidence of other discriminatory
conduct has been held by courts as relevant to allegations of discrimination. Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir. 1994); Glass v. Philadelphia Electric Co., 34 F.3d 188, 195 (3d Cir.
1994). Neither involves a dispute as to scope of production. Moreover, while cases such as
Fuentes and Glass recognize that other claims of discrimination against a defendant could provide
circumstantial evidence of a defendant’s discriminatory actions in the case at bar, none support a
near-unlimited collection of unspecified claims. Significantly, Fuentes does not even discuss the
scope or production of such information. It merely recognizes in a parenthetical that evidence of
how an employer treated other similarly situated persons not of the plaintiff’s class or that an
employer has discriminated against other members of plaintiff’s protected class is probative
evidence of discrimination. Fuentes, 32 F.3d at 765. Similarly, in Glass when noting that
“circumstantial proof of discrimination typically includes unflattering testimony about the
employer’s history and work practices,” the court was addressing the admissibility of such
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evidence already in plaintiff’s possession, not its discoverability or production. Glass, 34 F.3d at
195 (quoting Estes v. Dick Smith Ford, Inc., 865 F.2d 1097, 1103 (8th Cir. 1984)).
While the cases cited by Plaintiff recognize that prior EEO actions against a defendant can
buttress a plaintiff’s claim, none suggest that that the wide-ranging and vague discovery as sought
by the Plaintiff is warranted. Pursuant to Federal Rule of Civil Procedure:
Parties may obtain discovery regarding any non-privileged 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 discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its likely
benefit.
Fed. R. Civ. P. 26(b)(1) (emphasis added).
Discovery in civil matters pending in federal court is quite broad. Nevertheless, despite
this breadth, the scope of discovery is not without bounds (see FED.R.CIV.P. 26(b)(2)(C); Unicasa
Mktg. Group, LLC v. Spinelli, Civil Action No. 04-4173 (PGS), 2007 WL 2363158, at *2 (D.N.J.
Aug. 15, 2007) (citing Rule 26(b)(2)(C)) (noting that “[w]hile broad, the scope of discovery is not
boundless”)), and courts will not permit parties to engage in fishing expeditions. See Claude B.
Bamberger Int’l, Inc. v. Rohm and Haas Co., No. CIV. 96-1041 (WGB), 1998 WL 684263, at *2
(D.N.J. April 1, 1998).
The lack of specificity suggests that Plaintiff is indeed on a fishing expedition. Neither the
rules nor the case law supports Plaintiff’s request for the discovery of all EEO claims brought
against the NJDEP since May 8, 2001, nor does it support Plaintiff’s request for such a wide range
of documents. Plaintiff fails to sufficiently address the relevance or proportionality, in accordance
with Federal Rule of Civil Procedure 26(b)(1) to warrant allowing such discovery.
Finally, Plaintiff does little to address the obvious privacy issues implicated by EEO
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proceedings other than to suggest that the court can conduct an in camera review. In Korostynski
v. State of NJ, Div. of Gaming Enforcement, the Superior Court of New Jersey, Appellate Division
held that when confidential personnel information is requested, the court must weigh the litigant’s
need for the information against the public interest in confidentiality. Korotynski v. State of NJ,
Div. of Gaming Enforcement, 266 N.J. Super. 549, 555 (App. Div. 1993). The Court further noted
that when the privacy of third-parties is at issue, the court should be particularly careful to take
appropriate procedures to ensure justified confidentiality. Id. at 544. Even if the information is
reviewed in camera, that does not negate the privacy interest of the other individuals who are not
involved in the litigation and whose privacy rights are implicated. This Court notes that extensive
in camera review of documents is not generally encouraged. Bogosian v. Gulf Oil Corp., 738
F.2d 587, 595 (3d Cir. 1984). Even if the Court were to find Plaintiff’s delay in pursing this
discovery excusable, and even if the Court deemed the Plaintiff’s request for such expansive
discovery as reasonable, the suggestion that It conduct an in camera review of more than thirteen
years of material, is not.
The Court finds that Plaintiff’s request is untimely and burdensome and that that Plaintiff
has failed to provide sufficient relevance to support such a broad discovery request. Therefore,
Plaintiff’s motion is hereby DENIED.
III.

CONCLUSION
For the reasons set forth above, Plaintiff’s Motion to Compel is DENIED. An appropriate

Order follows.
Dated: October 30, 2017

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s/Tonianne J. Bongiovanni
HONORABLE TONIANNE J. BONGIOVANNI
UNITED STATES MAGISTRATE JUDGE

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