Diaz-Garcia v. Surillo-Ruiz et al

Filing 116

MEMORANDUM AND ORDER re 103 Second Motion to Compel Discovery. The Court GRANTS plaintiffs' motion to compel, subject to a protective order. The Court ORDERS the parties to make every effort to reach agreement on an appropriate protective order, and to submit the order to the Court for approval by September 30, 2014. Signed by Judge Francisco A. Besosa on 09/16/2014. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALBA DIAZ-GARCIA, et al.,
Plaintiffs,
Civil No. 13-1473 (FAB)

v.
RAFAEL SURILLO-RUIZ, et al.,
Defendants.

MEMORANDUM & ORDER
BESOSA, District Judge.
Before the Court is plaintiffs’ second motion to compel
production of documents from SM Medical Services, CSP (“SM”),
Ricardo

Rivera-Garcia,

“defendants”).

and

Victor

(Docket No. 103.)

Simmons

(collectively,

Having considered the parties’

arguments, the Court GRANTS plaintiffs’ motion to compel, subject
to a protective order.
I.

BACKGROUND
Plaintiffs are current or former employees of the Diagnosis

and Treatment Health Center of Yabucoa (“CDT”), which is operated
by SM pursuant to SM’s contract with the Municipality of Yabucoa.
(Docket No. 44.)

In their third amended complaint filed on

October 7, 2013, plaintiffs allege that because of their political
affiliations, they suffered adverse employment actions in the wake
of the November 2012 Yabucoa mayoral election.

Id.

Civil No. 13-1473 (FAB)

2

On May 6, 2014, as part of the discovery process, plaintiffs
asked defendants for the employment applications and appointments
of

seventeen

CDT

employees.

(Docket

No.

103

at

pp.

2-3.)

According to the plaintiffs, these employees were “new appointees
that were hired by SM Medical to work in the Yabucoa CDT after the
2012 elections.”1

(Docket No. 108 at p. 4.)

produce the documents.

Defendants refused to

(Docket No. 103 at p. 3.)

As a result,

plaintiffs filed a motion to compel discovery (Docket No. 85),
which the Court denied because plaintiffs failed to comply with the
good-faith meet and confer requirement of Local Rule 26(b) (Docket
No. 102).

Counsel for both parties met and conferred on August 6,

2014, at which time plaintiffs expanded their original request by
asking for the complete personnel files of the same seventeen CDT
employees.

(Docket

No.

103

at

p.

3.)

Defendants

informed

plaintiffs on August 15, 2014, that they would not provide the
personnel

files

but

instead

would

produce

the

dates

of

the

seventeen employees’ applications and their positions held at the

1

In their second motion to compel, plaintiffs listed the
seventeen employees’ names and stated that they “underst[ood]” that
the employees “are or were working at the Yabucoa CDT after the
2012 elections.”
(Docket No. 103 at pp. 2-3.)
Plaintiffs
clarified in their reply that the employees were “new appointees
that were hired by SM Medical to work in the Yabucoa CDT after the
2012 elections.” (Docket No. 108 at p. 4.) Defendants, in their
sur-reply, did not challenge that these seventeen individuals were,
in fact, CDT employees hired after the 2012 election.
(Docket
No. 113.) The Court therefore rules on this motion to compel with
the understanding that the seventeen employees were hired to work
at the CDT after the 2012 election.

Civil No. 13-1473 (FAB)
CDT.

Id. at p. 4.

3

Unsatisfied with this response, plaintiffs now

move the Court to compel the defendants to produce the seventeen
employees’ personnel files. (Docket No. 103.) Defendants filed an
opposition to the motion.

(Docket No. 105.)

Plaintiffs submitted

a reply to defendants’ response (Docket No. 108), and defendants
submitted a sur-reply (Docket No. 113).
this case is October 24, 2014.
II.

The discovery deadline in

(Docket No. 52.)

ANALYSIS
Defendants

personnel

object

files

timeliness.

on

to

three

producing
grounds:

(Docket No. 105.)

the

seventeen

relevance,

employees’

privacy,

and

The Court will address each

objection in turn.
A.

Relevance of the Personnel Files
Federal Rule of Civil Procedure 26(b) (“Rule 26(b)”)

limits the scope of discovery to “any nonprivileged matter that is
relevant to any party’s claim or defense.”
26(b)(1).

Fed. R. Civ. P.

Rule 26(b) allows a court, for good cause, to “order

discovery of any matter relevant to the subject matter involved in
the action.”

Id.

“The scope of discovery is broad, and to be

discoverable,

information

need

only

appear

to

be

‘reasonably

calculated to lead to the discovery of admissible evidence.’”
Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 52
(1st Cir. 2009) (quoting Fed. R. Civ. P. 26(b)(1)) (other quotation
marks and internal citation omitted).

Civil No. 13-1473 (FAB)
1.

4

The Personnel Files are Relevant to the Plaintiffs’
Political Discrimination Claim
“A plaintiff bringing a political discrimination

claim

bears

the

burden

of

producing

sufficient

direct

or

circumstantial evidence from which a jury reasonably may infer that
his constitutionally protected conduct . . . was a substantial or
motivating

factor

behind

his

dismissal.”

Peguero-Moronta

v.

Santiago, 464 F.3d 29, 45 (1st Cir. 2006) (internal quotation marks
and citations omitted).

Because “it is rare that a ‘smoking gun’

will be found in a political discrimination case, [] circumstantial
evidence alone may support a finding of political discrimination.”
Lamboy-Ortiz v. Ortiz-Velez, 630 F.3d 228, 240 (1st Cir. 2010). To
meet their burden, “[p]laintiffs who have lost their jobs [often]
present evidence about the hiring practices of the defendant in the
wake of an election generally — i.e., evidence that the defendants
filled all, or most, recently vacated positions with supporters of
their political affiliation.”

Peguero-Moronta, 464 F.3d at 46.

Examination of the personnel files of seventeen new
employees hired after the 2012 mayoral election would not only lead
to evidence of the defendants’ hiring practices in the wake of the
2012

election

generally,

see

id.,

but

may

also

lead

circumstantial evidence to support the plaintiffs’ claim.

to
For

example, defendants assert that no one replaced plaintiffs Nezmaida
Y. Medina-Sanchez (“Medina”) and Carlos Lazu-Santiago (“Lazu”) when
they were, respectively, demoted from the position of Nursing

Civil No. 13-1473 (FAB)

5

Director and transferred to a different facility. (Docket No. 1081, ¶¶ 3(h) & 4(f).)

Yet defendants hired seventeen new CDT

employees after the 2012 election.

(Docket No. 108 at p. 4.)

Examining the personnel files of these newly hired employees may
reveal that some of them were hired to perform tasks for which
plaintiffs Medina and Lazú were responsible prior to their demotion
and

transfer,

plaintiffs

notwithstanding

were

not

defendants’

“replaced.”

assertion

See Acevedo

that

Garcia

v.

the
Vera

Monroig, 30 F. Supp. 2d 141, 155 (D.P.R. 1998) (Pieras, J.)
(finding list of newly hired employees provided by defendants
insufficient

to

determine

if

new

employees

performed

duties

previously done by plaintiffs in political discrimination case, and
noting that personnel files of the new employees would be helpful
evidence).

If

plaintiffs

can

further

prove

that

these

new

employees belonged to the new mayor’s political party, then this
circumstantial evidence will support their political discrimination
claim.

See Rodriguez-Rios v. Cordero, 138 F.3d 22, 24 (1st Cir.

1998) (finding that plaintiff who “adduced evidence that every
employment task for which she had been responsible prior to her
demotion was performed thereafter by [a] member [of the opposing
political

party]”

established

prima

facie

case

of

political

discrimination).
Therefore, the Court finds that the request to view
the personnel files is “reasonably calculated to lead to the

Civil No. 13-1473 (FAB)
discovery

of

6

admissible

evidence”

political discrimination claim.

to

support

the

plaintiffs’

See Fed. R. Civ. P. 26(b)(1).

Although this is sufficient to support a discovery order under
Rule 26(b), the Court will further establish how the personnel
files are also relevant to the defenses raised by the defendants.
See Fed. R.

Civ. P.

26(b)(1)

(“Parties may

obtain

discovery

regarding any nonprivileged matter that is relevant to any party’s
claim or defense” (emphasis added)).
2.

The Personnel Files are Relevant to the Defendants’
Defenses of “Company Reorganization” and “Economic
Problems”
Plaintiffs in political discrimination cases “have the

threshold burden to produce sufficient direct or circumstantial
evidence from which a rational jury could find that political
affiliation was a substantial or motivating factor behind the
adverse employment action.”

Rodriguez-Rios, 138 F.3d at 24.

burden

the

then

shifts

to

defendant

to

“articulate

The
a

nondiscriminatory basis for the adverse employment action and prove
by a preponderance of the evidence that it would have been taken
without

regard

to

plaintiff's

(emphasis in original).
the

plaintiff

nondiscriminatory
evidence.”

may

political

affiliation.”

Id.

“If the defendant makes such a showing,
attempt

reason

to

with either

discredit
direct

or

the

tendered

circumstantial

Balaguer-Santiago v. Echegoyen, 219 F. App’x. 13, 16

(1st Cir. 2007). A plaintiff tasked with discrediting “the reasons

Civil No. 13-1473 (FAB)

7

given for his discharge . . . should not normally be denied the
information necessary to establish that claim.”
Westinghouse

Elec.

Corp.,

576

F.2d

588,

592

Cf. Marshall v.
(5th

Cir.

1978)

(addressing Age Discrimination in Employment Act claim, in which
the burden of persuasion remains with the plaintiff).
sensitive
certain

political

non-party

pretext.

discrimination

employees

may

cases,

contain

personnel
valuable

In factfiles

of

evidence

of

Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991)

(finding that

the

district

court

abused its

discretion

in

a

political discrimination case when it denied discovery of personnel
files of employees who committed infractions more serious than
plaintiffs but were not similarly discharged, reasoning that “[a]ll
or some parts of these personnel files could be central to the
plaintiffs’ effort to prove pretext”).
Defendants assert that plaintiffs were terminated or
demoted due to “reorganization of [the] company” and “economic
problems.”

(Docket No. 108-1 at ¶¶ 2(d), 2(f), 3(d), 3(g).)

Examination of the personnel files of seventeen new employees hired
after

the

2012

mayoral

election

may

lead

the

plaintiffs

to

circumstantial evidence to prove that these reasons are pretextual.
For example, the personnel files may reveal that new employees were
hired to perform the same tasks performed by plaintiffs who were
terminated or demoted, demonstrating that the company was not
“reorganized.”

The

personnel

files

may

also

reveal

salary

Civil No. 13-1473 (FAB)

8

information about the new employees, which could refute the defense
that the company needed to terminate and demote the plaintiffs
because it suffered “economic problems.” Therefore, the request to
view the personnel files is “reasonably calculated to lead to the
discovery of admissible evidence” to rebut defendants’ defenses.
See Fed. R. Civ. P. 26(b)(1).
Thus,

the

Court

finds

that

discovery

of

the

personnel files of the seventeen CDT employees hired after the 2012
mayoral election is relevant to both the plaintiffs’ political
discrimination claim and the defendants’ defenses.

See Fed. R.

Civ. P. 26(b)(1).
B.

Privacy Rights of Unrelated Non-Parties
Defendants object to producing the seventeen employees’

personnel files on grounds that the files contain confidential
information and producing them would violate the employees’ privacy
rights.

(Docket No. 105.)

To be sure, defendants do not claim

that the personnel files contain privileged information, which is
undiscoverable pursuant to Rule 26(b).

See Fed. R. Civ. P.

26(b)(1). Rather, defendants point to general privacy interests to
support their objection.
Courts have considered the privacy interests of non-party
employees

when

deciding

whether

to

order

discovery

personnel files in employment discrimination cases.

of

their

See, e.g.,

Whittingham v. Amherst Coll., 164 F.R.D. 124, 127-28 (D. Mass.

Civil No. 13-1473 (FAB)

9

1995) (“[W]hile discovery is usually broad, Plaintiff has not
demonstrated
marginally

that

the

relevant,

[personnel]

outweigh

the

files

he

privacy

seeks,

interests

even
of

if

these

individuals.”); Gehring v. Case Corp., 43 F.3d 340, 342 (7th Cir.
1994) (upholding district court decision to curtail discovery of
personnel files where district judge examined the files, determined
they were not relevant, and concluded that disclosure would invade
employees’ privacy).

Courts also find that protective orders can

adequately safeguard the private information contained in personnel
files.

See, e.g., Barella v. Vill. of Freeport, 296 F.R.D. 102,

106 (E.D.N.Y.

2013)

(“in

most

cases,

a

protective

order

can

appropriately remedy privacy concerns arising from discovery of
personnel

records”

(internal

quotation

marks

and

citation

omitted)); Glenn v. Williams, 209 F.R.D. 279, 282 (D.D.C. 2002)
(finding that the protective order to which the parties agreed for
the release of 25 personnel files made “any remaining privacy
concerns negligible”); Miles v. Boeing Co., 154 F.R.D. 112, 115
(E.D. Pa. 1994) (ordering discovery, subject to a protective order,
of personnel file of employee who replaced plaintiff after he was
demoted).
Plaintiffs drafted a protective order that would limit
access to and use of the information contained in the personnel

Civil No. 13-1473 (FAB)
files.2

10

(Docket No. 103-1.)

Plaintiffs filed this proposed

protective order with their second motion to compel.

Id.

Neither

in their opposition to the second motion to compel nor in their
sur-reply do defendants explain why such a protective order would
not cure their privacy and confidentiality concerns.

(See Docket

Nos. 105 & 113.)
The Court therefore finds that any privacy interests
implicated by the disclosure of personnel files will be adequately
safeguarded by a protective order.
C.

Timeliness of the Request for Production
Defendants argue that plaintiffs’ August 6, 2014 request

for production of personnel files was untimely because it came “a
full

eight

deadline.”

months

after

the

January

(Docket No. 105 at p. 3.)

31st

written

discovery

Defendants are mistaken, as

plaintiffs correctly point out in their reply, see Docket No. 108
at pp. 4-5, because the only discovery deadline ordered by the
Court is October 24, 2014.
No. 52 at p. 8.)

2

(See Case Management Order, Docket

Defendants argue in their sur-reply that the

The proposed protective order provides that the plaintiffs will
inspect the personnel files and identify the specific documents
that must be produced. (Docket No. 103-1.) It further stipulates
(1) that no document regarding medical treatment or conditions will
be requested, (2) that the defendants can redact social security
numbers and dates of birth from the requested documents, (3) that
the documents will not be disclosed to third parties and will only
be used for litigation in this case, and (4) that the documents
will be returned to the defendants after the final disposition of
the case. Id.

Civil No. 13-1473 (FAB)
request

for

production

(Docket No. 113 at p. 2.)

11
nonetheless

came

at

the

“11th

hour.”

Defendants do not allege, however, that

producing the requested documents would be burdensome.

Thus, the

Court finds that the plaintiffs’ request for the production of
seventeen personnel files on August 6, 2014, two and a half months
before the discovery deadline, was timely.
III. CONCLUSION
For the reasons expressed above, the Court finds that the
personnel files are relevant and the request for them was timely.
The Court acknowledges, however, that production of the documents
may implicate some privacy concerns. Accordingly, the Court GRANTS
plaintiffs’ motion to compel the production of the seventeen CDT
employees’ personnel files, subject to a protective order.

The

Court ORDERS the parties to make every effort to reach agreement on
an appropriate protective order, and to submit the order to the
Court for approval by September 30, 2014.

Plaintiffs’ proposed

protective order (Docket No. 103-1) will be used as a working
document.
IT IS SO ORDERED.
San Juan, Puerto Rico, September 16, 2014.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE