Opinion
DOCKET NO. A-0413-14T4
08-31-2015
WILFREDO PADILLA, JR., Plaintiff-Respondent, v. RUTGERS, THE STATE UNIVERSITY and MICHAEL P. LATTIMORE, both in his individual capacity and in his official capacity as Chief of Police, Defendants-Appellants, and RUTGERS UNIVERSITY POLICE DEPARTMENT, Defendant.
James P. Lidon argued the cause for appellants (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Lidon, on the brief). Michael G. Kane argued the cause for respondent (Cashdan & Kane, attorneys; Mr. Kane, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3151-11. James P. Lidon argued the cause for appellants (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Lidon, on the brief). Michael G. Kane argued the cause for respondent (Cashdan & Kane, attorneys; Mr. Kane, on the brief). PER CURIAM
On leave granted in this employment discrimination and wrongful termination action, defendants Rutgers, the State University, and Michael P. Lattimore appeal from a discovery order compelling them to produce more than fifty internal affairs (IA) files. Having considered defendants' arguments in light of the record and applicable law, we conclude the trial court misapplied its discretion by entering the discovery order without properly balancing, on one hand, plaintiff's interest in discovery and the public interest in eradicating discrimination from the work place, and, on the other, the public interest in maintaining confidentiality of police personnel files. Accordingly, we reverse and remand for further proceedings.
The procedural history is undisputed. Following the termination of his employment as a Rutgers University police officer, plaintiff Wilfredo Padilla, Jr. filed a complaint in lieu of prerogative writs. He alleged, among other things, that numerous procedural violations had occurred throughout the internal disciplinary proceedings culminating in his termination and that these violations deprived him of due process and violated 42 U.S.C.A. §1983. Defendants removed the action to the United States District Court for the District of New Jersey and filed an answer. Thereafter, the federal court granted plaintiff's motion to amend the complaint by dismissing without prejudice all federal claims, and the court remanded the case to Superior Court.
Meanwhile, plaintiff had filed a second complaint in Superior Court, alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 & 2. In his four-count complaint plaintiff alleged in the first three counts that "he observed that he was treated in a different manner than his co-workers" and "concluded that this difference in treatment was because of [p]laintiff's national origin/ancestry/ethnicity, which was Hispanic." He also alleged that after he complained about his discriminatory treatment, defendants retaliated against him by terminating his employment on the pretext that "he had lied about whether he had checked buildings during his rounds." In the fourth count, plaintiff alleged defendants violated the CRA by depriving him of procedural and substantive due process during his disciplinary proceedings.
Plaintiff's second complaint included the following allegations relevant to the discovery demands at issue. In the first count, which alleged a general violation of the LAD, plaintiff asserted:
[Defendants] disciplined [p]laintiff for alleged infractions that non-Hispanic
officers were not disciplined for or were disciplined less for as when [d]efendants suspended [p]laintiff for allegedly violating its no re-entry policy and when it disciplined [p]laintiff for allegedly abusing its attendance policy. Further, [d]efendants visited [p]laintiff['s] house to check on him when he was out sick on approved leave but it did not expose other officers to this treatment.
In the second count, which alleged defendants retaliated against him in violation of N.J.S.A. 10:5-12(d), plaintiff asserted: "Defendant retaliated against [p]laintiff for his complaints against his employer's conduct when [d]efendant made false accusations against [p]laintiff during the course of the investigation." In the third count, which alleged defendants discriminated against him in the terms and conditions of his employment in violation of N.J.S.A. 10:5-12(a), plaintiff asserted: "Defendant terminated [p]laintiff because of his national origin/ethnicity/ancestry, which is Hispanic."
After defendants filed an answer the court consolidated the actions. During discovery, plaintiff filed a motion seeking an order compelling defendants to produce IA files. Although the parties entered into a consent protective order and confidentiality agreement, and though defendants agreed to produce both "pristine" and proposed-redacted IA files concerning plaintiff's absenteeism, plaintiff sought to discover a much broader range of IA files.
To resolve the motion the trial court ordered defendants to produce the IA files in dispute "in original and proposed-redacted form" for an in camera review so the court could "make a determination of any factual predicate that a file will bear relevant fruit to [p]laintiff's claims and whether there is a showing of comparable discipline." Following its review, the court ordered defendants to produce for plaintiff's attorney's inspection more than fifty redacted IA files.
In the opinion it delivered from the bench, the trial court explained that it had requested additional information from defendants. In response, defendants provided the court with "University Police Department Directive N-W-K-31[,]" the first section of which stated: "It should be noted that the rules of conduct set forth in this policy are not intended to serve as a complete list of the requirements, limitations or prohibitions on the conduct of department employees."
Defendants also informed the court that no schedule of offenses or penalties were in use during plaintiff's employment "or during any portion of the 2006 dash 2010 period covered by the internal affairs records currently under in camera inspection by the [c]ourt." Defendants also asserted in a letter, "[a]lthough the R-U-P-D does not use a predetermined schedule of disciplinary sanctions the University does not believe that the case by case decision making undertaking by the R-U-P-D is arbitrary"; and "that the automatic imposition of the same disciplinary sanction to each infraction that falls into . . . a given infraction category without consideration of severity, culpability, . . . dishonesty, impact on the department or danger to the public, . . . would be far more arbitrary than our case by case determinations."
The court found significant that none of the files submitted for its in camera review expressly identified the racial background of any of the personnel in question. Nonetheless, having analyzed the documents under a "comparable seriousness analysis," the court concluded "there is no doubt that internal affairs files relating to the same offenses under which plaintiff was subjected to discipline are discoverable under the comparable seriousness standard."
Lastly, the court noted that "plaintiff was charged with abuse of sick time, abuse of law enforcement power or position, insubordination . . . and untruthfulness in statements concerning police activities. As such, as to those categories the following internal affairs files are discoverable. And, the list will be provided in the order."
Next, citing "New Jersey's discovery rules [as] favor[ing] broad discovery[,]" and reiterating its inability to determine the race of any of the "offenders" in the IA files, the trial court ruled that "the following sustained and unfounded files are discoverable. And the list of these . . . will be attached and listed in the order." The court reasoned that plaintiff was entitled to discover files in which charges were both sustained and unfounded to determine whether "officers of a particular racial background are consistently found to be innocent of disciplinary charges while Hispanic officers such as plaintiff are targets of racial discrimination."
The court limited its ruling to sworn police officers, not unsworn personnel. Lastly, the court ruled that files redacted with respect to "personal identifiers and the identity of civilians" should be produced for inspection rather than un-redacted files. In its memorializing order, the court identified by number three sets of files, one set to be non-discoverable, the other two sets presumably falling into the categories identified by the court in its oral opinion.
The court denied defendants' application for a stay pending their motion seeking interlocutory review. Thereafter, we granted defendants' application for a stay as well as their motion for leave to file an interlocutory appeal.
Defendants argue on appeal that the trial court failed to balance the significant public interest in maintaining the confidentiality of police personnel records against plaintiff's discovery interest. Defendants characterize the trial court's opinion as "reasoning that no balancing of competing interest need be undertaken because this is not a criminal case[.]" Defendants also argue the trial court "failed to conduct an appropriate evaluation of the relevance of the materials at issue[.]" To support that claim, defendants cite to files where an officer was terminated for a theft captured on videotape and another for refusing mandatory overtime.
Defendants also argue that the trial court erred by failing to make a sensitive appraisal of each file, instead ordering discovery of wholesale categories of files because it could not determine whether any were relevant, being unable to determine from the files themselves the race of the offenders. Lastly, defendants assert the court gave wholly inadequate reasons for its decision.
Plaintiff responds that he was entitled to the records under Rule 4:10-2(a) if his demand for them was "reasonably calculated to lead to the discovery of admissible evidence[.]" He reasons that because the trial court evaluated his discovery requests under that standard, the court did not abuse its discretion.
Plaintiff contends that because he alleges defendants "disciplined him more harshly than his peers for activities that arguably constituted infractions of the Police Department's 'conduct unbecoming' standards, among other violations[,]" he was entitled to the discovery. He asserts it is undisputed "that discovery of how the same decision-maker treated other employees in the same job is relevant to the issue of discrimination and/or retaliation."
We begin our analysis by reviewing some basic principles concerning discovery. In civil actions,
[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence; nor is it ground for objection that the examining party has knowledge of the matters as to which discovery is sought.
[R. 4:10-2(a).]
Indisputably, "New Jersey's discovery rules are to be construed liberally in favor of broad pretrial discovery." Payton v. N.J. Tpk. Auth., 148 N.J. 524, 535 (1997) (citing Jenkins v. Rainner, 69 N.J. 50, 56 (1976) ("Our court system has long been committed to the view that essential justice is better achieved when there has been full disclosure so that the parties are conversant with all the available facts.")). Nonetheless, "the scope of discovery is not infinite." K.S. v. ABC Prof'l Corp., 330 N.J. Super. 288, 291 (App. Div.), motion for leave to appeal denied, 174 N.J. 409 (2000). Rather, it is limited by Rule 4:10-2(a) to information, "not privileged, which is relevant to the subject matter involved in the pending action[.]" R. 4:10-2(a). Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.
Even in the absence of a privilege that precludes discovery, our courts have recognized circumstances under which discovery should not be permitted. See, e.g., Dixon v. Rutgers, The State Univ. of N.J., 110 N.J. 432, 439, 454-55 (1988) (explaining that in actions similar to those brought by the plaintiff, who claimed she was denied tenure because of her gender, parties "ought not to be entitled to a general inquisition into the University's [confidential and peer review] files merely on the strength of having filed a complaint[,]" and further explaining that a trial court must first "satisfy itself that the discrimination charge is valid and the material requested is relevant") (citation and internal quotation marks omitted); Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J. Super. 134, 141-42 (App. Div. 2001) (explaining that when faced with a plaintiff's application for an order compelling an Internet Service Provider to disclose the identity of an anonymous internet poster who posted allegedly defamatory material, courts "must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facia case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed").
We have addressed discovery of confidential police files in both criminal and civil matters. In criminal cases, when a defendant demands to inspect a police officer's personnel file, the trial court must balance the public interest in maintaining confidentiality of police personnel records and the defendant's constitutional right of confrontation. State v. Harris, 316 N.J. Super. 384, 397-98 (App. Div. 1988). In such a situation, a court must conduct an in camera inspection of the file once the defendant has advanced "'some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its context is not merely a desperate grasping at a straw.'" Id. at 398 (quoting State v. Kaszubinski, 177 N.J. Super. 136, 141 (Law Div. 1980)). "It is generally not necessary for a defendant to establish that the personnel file actually contains relevant information so long as the proper factual predicate has been met." Ibid.
In Bayer v. Twp. of Union, 414 N.J. Super. 238, 273-74 (App. Div. 2010), we implicitly approved in the context of a civil case the court's in camera review of police personnel files demanded by the plaintiff during discovery. We upheld the trial court's denial of plaintiff's discovery request because after conducting the in camera review of all of the files, "[t]he court concluded that nothing in the materials reviewed was relevant to plaintiff's claims against the Township . . . ."
With the foregoing discovery principles in mind, we turn to the trial court's opinion, reviewing it as we do all discovery rulings under an abuse-of-discretion standard. Payton, supra, 148 N.J. at 559. For the following reasons, we conclude the trial court misapplied its discretion.
Plaintiff claims that he was disciplined disparately because of his race. To present a prima facie case of discriminatory discipline, plaintiff must prove:
(a) That plaintiff was a member of a protected group;
(b) That there was a company policy or practice concerning the activity for which he or she was discharged;
(c) That the non-minority employees either were given the benefit of a lenient company practice or where not held to compliance with a strict company policy; and
(d) That the minority employee was disciplined either without application of a lenient policy, or in conformity with the strict one.
[Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 304-05 (App. Div. 2000) (quoting Jackson v. Georgia-Pacific Corp., 296 N.J. Super. 1, 21 (App. Div. 1996), certif. denied, 149 N.J. 141 (1997)).]
"A claim of racially disparate treatment requires the employee to prove a discriminatory motive, although in some cases the motive may be inferred from the disparate treatment itself." Id. at 304. Additionally, "[a] disparate treatment claim with regard to discipline requires comparison between the defendant's conduct toward plaintiff and other members of the protected class on one hand, and similarly situated employees not within the protected class on the other." Id. at 305.
Here, the trial court was required to determine if the IA files were discoverable in light of the elements of a disparate treatment claim and the complaint's allegations. In doing so, the court was required to balance, on one side, plaintiff's discovery interest and the need to eradicate discrimination from the work place, and on the other side, the public interest in maintaining confidentiality of police personnel records. Although the trial court articulated the need to balance these competing interests, it does not appear from the court's oral decision that it did so.
Plaintiff's discovery request was, as the trial court found, calculated to lead to the discovery of admissible evidence. R. 4:10-2(a). As we previously explained, a disparate disciplinary treatment claim "requires comparison between the defendant's conduct toward plaintiff and other members of the protected class on one hand, and similarly situated employees not within the protected class on the other." Jason, supra, 329 N.J. Super. at 305. Plaintiff's discovery demand was calculated to lead to precisely such evidence.
Next, the trial court was apparently satisfied that plaintiff had advanced "'some factual predicate which would make it reasonably likely that the file will bear such fruit and that the quest for its context is not merely a desperate grasping at a straw.'" Harris, supra, 316 N.J. Super. at 397-98 (citation omitted). Although the complaint's allegations were mostly conclusory, see Dixon, supra, 110 N.J. at 454, and though plaintiff did not name another officer who had received more lenient discipline for misconduct similar to that allegedly committed by plaintiff, defendants do not appear to have disputed that plaintiff complained of discriminatory disparate discipline and was thereafter terminated from his employment. As previously noted, "[i]t is generally not necessary for a defendant to establish that the personnel file actually contains relevant information so long as the proper factual predicate has been met." Harris, supra, 316 N.J. Super. at 398.
Plaintiff's demand to discover the IA files having been reasonably calculated to lead to discoverable evidence, and plaintiff having advanced a factual predicate which would make it reasonably likely that the IA files would bear fruit and that his quest was not merely a desperate grasping at a straw, the trial court correctly undertook to review the files in camera. When it did so, however, it did not appear to strike a balance between plaintiff's discovery interest in the IA files and the countervailing public interest in maintaining confidentiality of police personnel records.
The trial court's failure to strike an appropriate balance between these competing interests is evident from the court's threshold observation that "none of the files submitted for in camera review expressly identify the racial background of any of the personnel in question." We fail to discern how the court could have struck a proper balance between competing interests when it could not even determine whether the purpose for inspection of the IA files would be served, the purpose being to enable plaintiff to make the "require[d] comparison between the defendant's conduct toward plaintiff and other members of the protected class on one hand, and similarly situated employees not within the protected class on the other." Jason, supra, 329 N.J. Super. at 305. The trial court could not have determined whether defendants imposed lesser discipline, or conducted themselves differently, as to members not within the protected class, when it could not determine whether any IA file did or did not involve a member of a protected class.
The same is true of plaintiff's wrongful discharge claim. "Especially relevant to . . . a showing [of the elements of a discriminatory discipline claim] would be evidence that white employees involved in acts . . . of comparable seriousness . . . were nevertheless retained . . . ." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L. Ed. 2d 668, 679 (1973). But the trial court could not have made such a determination without knowing the class — protected or not — of the offender in each IA file. And to order the files turned over to plaintiff because his demand was reasonably calculated to lead to admissible evidence, and he could perhaps determine whether the IA subjects were members of a protected class, was to disregard the public interest in maintaining confidentiality of police personnel files.
The trial court should have required defendants to provide the relevant information as to each IA offender, or at least given them the opportunity to do so, perhaps coded, before ordering the wholesale discovery of IA files. Armed with that information, the trial court could have determined during its in camera inspection whether any file was actually relevant to plaintiff's claims and thus maintained the confidentiality of files that were not.
On remand, the trial court must make as to each file a specific determination whether it is discoverable, considering the elements of a prima facie case of discriminatory disparate discipline and the allegations plaintiff has raised in his pleadings as well as interrogatory answers and deposition if such discovery has been completed. The court must also provide adequate reasons for its rulings, without disclosing the factual information sought, so as to permit appellate review. See Payton, supra, 148 N.J. at 550; Rosenberg v. State Dept. of Law & Pub. Safety, Div. of Criminal Justice, 396 N.J. Super. 565, 581 (App. Div. 2007). Providing adequate reasons is particularly important when a court orders discovery of a file that does not facially appear to concern conduct comparable to that attributable to plaintiff. Such would be so with respect to the discipline of a police officer for a crime such as theft.
Lastly, as to files the court orders defendants to produce, the court "should take adequate protective measures to ensure maximal confidentiality given the necessity of disclosure." Payton, supra, 148 N.J. at 550. The court may deem the parties' confidentiality agreement adequate for that purpose. If the court so determines, it need take no further action.
We recognize the demands on a trial court faced with inspecting voluminous documents or files. The trial court may certainly consider appointing a special discovery master to assist in reviewing files and make appropriate recommendations, on reasonable terms and conditions at the parties' shared expense, subject to readjustment at the conclusion of the litigation if a party prevails and thereby is entitled to costs and fees under an applicable statute. See, e.g., Rosenberg, supra, 396 N.J. Super. at 580-81 & n.3 (citing the trial court's authority to appoint a special master to assist in reviewing allegedly-privileged documents); see also Hammock by Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 381-82 (1995); R. 4:41-1 to -5. Of course, if the court considers appointing a discovery master, it must evaluate the competing considerations we identified in Zehl v. Elizabeth Bd. of Educ, 426 N.J. Super. 129 (App. Div. 2012).
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION