Opinion
No. ESX-L-7409-08
Decided February 5, 2010
David Zatuchni, Esq., Attorney for Plaintiff.
Sheryl Reba, Esq., Attorney for Defendant New Jersey Transit and John Riccardi.
Christopher Farella, Esq, Attorney for Defendant Joseph Bober.
OPINION
I. STATEMENT OF MATERIAL FACTS
This case involves several claims filed by Plaintiff Kathleen Shanahan against Defendants New Jersey Transit Corporation (herinafter "NJT"), Joseph Bober and John Riccardi, all of which fall under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq. Specifically, Ms. Shanahan has brought four (4) claims against Defendants: (1) retaliation for lodging an EEO complaint against former Captain John Riccardi for his discriminatory conduct towards her in an October 2004 Internal Affairs interview; (2) exposure to a hostile work environment on the basis of her sexual orientation; (3) retaliation for her testimony in support of two other NJT employee's statutory rights; and (4) discriminatory and retaliatory failure to promote Ms. Shanahan to Captain in mid-2008.
In an effort to support her allegations against Defendants, Ms. Shanahan has demanded that Defendant NJT turn over certain studies/reports that specifically analyze whether Defendants NJT and Bober have engaged in the discriminatory and disparate discipline of NJT police officers and studies/reports that address the rise in EEOC complaints under Defendant Bober's tenure. Defendant NJT has refused to turn over these reports on the basis that these studies are protected by the deliberative process privilege.
In connection with the instant motion, Plaintiff seeks the production of four documents. The first, dated November 16, 2006, was prepared by Alma Scott-Buczak, the head of Human Resources for NJT, and directed to George Warrington then Executive Director for all of NJT (the "Buczak Analysis"). The second document, dated December 21, 2006, was prepared by E. Philip Isaac, NJT's Ethics Liason Officer, and directed to Jan Walden, Assistant Executive Director, DBE and Diversity ("Isaac Analysis"). The third document, drafted by Joyce Pratt of TJ Associates, dated January 29, 2007, purports to be a Review Statistical Analysis of Employment Practices of NJT's Police Department as of December 2006. In addition, there is another twenty-one page document, dated January 31, 2007, prepared by Joyce Pratt of TJ Associates and directed to Jan Walden, reformatting the original report. Also included is a two page fax, dated March 5, 2007, prepared by Joyce Pratt of TJ Associates and directed to Jan Walden, Executive Director NJT Diversity (collectively, the "TJ Analysis"). This two page fax notes that Ms. Pratt corrected errors on the original chart, including among other things, that one female employee's termination should only be counted as one termination and not three. The fourth report was prepared by Sonia Illescas and William Hemphill and comments on the TJ Analysis (the "Illescas Report").
Plaintiff asks the Court to compel the production of these studies/reports and Defendants filed a cross motion for a protective order from producing same.
II. DISCUSSION
1. Reports are Relevant
Before addressing whether or not the materials sought by Plaintiff Shanahan should be protected by a privilege, the Court must first determine whether these materials are relevant to Plaintiff Shanahan's claims. Dixon v. Rutgers, The State Univ. of New Jersey, 110 N.J. 432, 441-442 (1988).
Under the New Jersey Court Rule 4:10-2, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim of defense of any other party." New Jersey courts have consistently held that pretrial discovery should be accorded the broadest possible latitude. Jenkins v. Rainner, 69 N.J. 50, 56 (1976). A party is entitled to any information that might lead to the discovery of relevant evidence. Catalpa Inv. Group v. Franklin Tp. Zoning Board of Adjustment, 254 N.J. Super. 270, 273 (Law. Div. 1991). In other words, a party has a right to discovery for any evidence that is "reasonably calculated to lead to the discovery of admissible evidence." In re Liquidation of Integrity Ins. Co., 154 N.J. 75, 82 (2000). Any evidence ". . . having a tendency in reason to prove or disprove any fact of consequence to the determination of the action" is considered relevant evidence. New Jersey Rules of Evidence 401. Accordingly, "[i]t 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." N.J. Ct. R. 4:10-2
In this case, Ms. Shanahan alleges sex and sexual orientation discrimination and retaliation against her by Defendants. The studies/reports sought by Plaintiff are relevant if they can assist Kathleen Shanahan in showing that Defendants NJT, Bober and Riccardi intended to discriminate against her with an unlawful purpose.Kearny Generating System v. Roper, 184 N.J. Super. 253, 261 (App.Div.), certif. den.;Roper v. Kearny Generating System, 91 N.J. 254 (1982).
In Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 82 (1978), the Supreme Court of New Jersey formally adopted the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as the proper test for those actions brought under LAD. Under the three-part framework ofMcDonnell Douglas: 1) the plaintiff must come forward with a prima facie case of discrimination; 2) the defendant must then articulate a legitimate, non-discriminatory reason for its decision; and 3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application. Peper,supra; McDonnell Douglas, supra at 807. Ms Shanahan can meet her prima facie case by demonstrating that more likely than not the employer's actions were based on unlawful considerations. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 477 (1978).
There is no doubt that the four (4) reports/analyses outlined above by Plaintiff are relevant to Ms. Shanahan establishing her LAD claims against Defendants. The data contained in these reports concerning the rise in EEO complaints under former Chief Bober's tenure may demonstrate a discriminatory motive and intent on the part of Defendants.
The data contained in these reports concerning the discipline of white males within the Police Department as compared to the discipline of minorities and women within the Police Department also provides Ms. Shanahan with evidence of discriminatory motive and intent on the part of Defendants, as well as the ability to refute Defendants' reasoning and defenses for the actions taken against Ms. Shanahan in the context of her employment.
Data that compares or analyzes how women police officers were being treated by way of discipline in comparison to male police officers under former Chief Bober is directly relevant to Plaintiff's claims that she was exposed to a hostile work environment based on her sexual orientation and she was not hired for a Captain's position in mid-2008 based on her gender. As defense counsel asserts in its brief, it is true that these reports do not directly address retaliation and do not specifically address Plaintiff's EEOC claims (or anyone else's EEO claims) and also do not address internal affairs investigations. Plaintiff, however, never alleged that these reports contained any such information and the fact that these reports lack such information is of no consequence to Plaintiff's relevancy argument. Plaintiff has not only alleged retaliation against Defendants, she has made very specific allegations against Defendants that she was treated differently based on her gender and sexual orientation.
Last, these reports contain data on the number of female officers hired under former Chief Mary Rabadeau in comparison to those hired under Defendant Joseph Bober. This evidence also assists Ms. Shanahan in showing that more likely than not, Defendants actions taken against her were because she was female or because of her sexual orientation.
Defendants' argument that the reports are irrelevant is meritless for the reasons set forth above. Thus, the reports sought by Plaintiff are relevant and discoverable.
2. Relevant Data Has Not Been Produced
Defendants assert that the relevant raw data in the reports have already been produced. Plaintiff replies that this assertion is false. The Court is satisfied with Plaintiff's argument that the reports at issue compare and analyze critical data, relevant to Plaintiff's claims, the majority of which is not in the possession of Plaintiff.
3. Deliberative Process Privilege
a. Application in the Employment Discrimination Context
The New Jersey Supreme Court did not recognize the deliberative process privilege until 2000. In Integrity Insurance,supra, the Court held that "[t]he deliberative process privilege . . . permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated" if the documents at issue were "generated before the adoption of an agency's policy or decision" and "contain[] opinions, recommendations, or advice about agency policies." Id. at 83-85. However, even if the privilege applies, "the party seeking discovery [can obtain the documents by] show[ing] that his or her compelling or substantial need for the materials overrides the government's interest in non-disclosure."Id. at 88.
The foregoing analysis does not apply in the context of employment discrimination cases. Three years before Integrity Insurance was decided, the Supreme Court had already specifically rejected this type of privilege in the context of employment discrimination cases in Payton v. New Jersey Turnpike Authority, 148 N.J. 524 (1997). It is clear that Integrity Insurance did not overrule or abrogate Payton because the Integrity Insurance opinion cites Payton approvingly no less than three times. Moreover, Payton has not been overruled since and remains good law.
In Payton, the State asked the New Jersey Supreme Court to hold that "[t]he privilege of self-critical analysis[, which] exempts from disclosure deliberative and evaluative components of an organization's confidential materials",id. at 544 (emphasis added), protects documents regarding the State's internal sexual harassment investigations from discovery. Id. Noting that "we particularly disfavor privileges in the employment-discrimination context", id. at 545, and "certain interests in disclosure are strong enough in their reflection of important public policies, to outweigh such confidentiality concerns under most, if not all, circumstances", id. at 548, the Court "reject[ed] the privilege of self-critical analysis in favor of a case-by-case balancing approach [b]ecause of the powerful public interest in eradicating discrimination and sexual harassment." Id. at 549. The Court held that "the balance generally will favor disclosure in this type of case."Id. at 549.
Thus, in employment discrimination cases, self-critical deliberative materials such as the discriminatory discipline reports and reports concerning and addressing the rise in EEO complaints within NJTPD at issue in this matter are presumed to be discoverable unless the documents are "of such limited relevance or of such high sensitivity that the balance will favor nondisclosure."Payton, supra, 148 N.J. at 549-50. This presumption of disclosure of self-critical deliberative materials in employment discrimination cases is the reason that no reported case applying the deliberative process privilege established in Integrity Insurance has involved a discovery request by an employment discrimination plaintiff. As the Court explains below, Defendants have failed to shift the balance in favor of nondisclosure.
b. Materials are Not Protected by the Privilege
Even if the Integrity Insurance analysis of the deliberative process privilege was to be applied in the employment discrimination context, the materials in question are not protected by the privilege. Defense counsel asserts that the deliberative process privilege applies and cites to Education Law Center v. NJ Dept. of Corrections, 198 N.J. 274 (2009). By relying onEducation Law Center, Defendants attempt to convince this Court that the deliberative process privileges bars production of the four (4) reports at issue. However, a thorough reading ofEducation Law only lends further support to Plaintiff's arguments that the four (4) reports in this matter should be turned over the Plaintiff.
Our Supreme Court in Education Law confirmed that in order to assert the deliberative process privilege, the party asserting the privilege must demonstrate that the document is: (1) predecisional (generated before the adoption of an agency's policy or decision), and (2) deliberative (must contain opinions, recommendations or advice about agency policies).Id. at 286. A document that contains factual components is only subject to the deliberative process privilege ". . . when it was used in the decision-making process and its disclosure would reveal the nature of the deliberations that occurred during that process." Id. at 299-300. Here, Defendants have the burden and cannot meet this standard.
While some documents at issue do contain some "recommendations", these amount to mere generalizations that cannot bring the report into the realm of the deliberative process privilege. For example, the Buczak Analysis report is a "Police Department Analysis" (emphasis added) and gives a summary of observations with only this recommendation:
we do need to remain diligent in helping [the Police department or its command] to continue to increase the representation of minorities and women especially at the command level and insuring that their HR practices minimize the filing of complaints and are easily defensible when one does arise.
Similarly, the Isaac Analysis report contains a cover sheet that details the purpose of the report. It states:
Enclosed please find the finalized report regarding NJTPD EEO/AA and Discipline/Counseling statistical data. This document was prepared at the request of Executive Director George Warrington and is presently being communicated to you for your further review and analysis. (emphasis added). The data report examines NJTPD data relating to disciplines/counselings and EEO/AA actions for two periods . . . Should you wish to discuss the document, please let me know.
The TJ Analysis contains a section titled "Recommendations." However, the recommendations merely refer to other general guides and Buczak Analysis for recommendations. In addition, they offer the following generalized recommendations:
New Jersey Transit should continue its due diligence . . . Human Resources, possibly Employee Relations, should manage, direct, and approve all employment actions that are documented to ensure company standards have been applied to all employees. Each department will have additional policies that are geared to the operations of that department, but those policies should also be reviewed by the Human Resource department.
Furthermore, the fax of January 31, 2007 from Joyce Pratt to Jan Walden concerning the above document indicates that the document was not written as a deliberative process. Pratt writes:
I was sure we had an understanding of the purpose and limitations of my analysis and that the only suggestion was to actually instruct NJT on actions to take versus recommendations and providing sources for possible action. I agree with Sonia and Bill, as we discussed at our meeting on January 29, that a determination of whether discrimination exists in the Police Department could only be made from a thorough investigation of disciplinary practices in the Police Department. You had also agreed with this at our original meeting with your staff. However, my first charge, as confirmed in my e-mail to you regarding the two phases, was to (Phase 1) analyze the information you had received to date for possible discrimination and submit recommendations. If nothing could be determined, Phase 2 would be an investigation.
Overall, the Court finds that no document sought by Plaintiff falls within the purview of the deliberative process privilege.
Moreover, Ms. Illescas testified at her deposition that no action/no decision was ever made by Defendants in response to the TJ Associates report or her report. In fact the testimony of Ms. Illescas demonstrates that Defendants were dismissing these reports and findings and took no action whatsoever on them. Ms. Illescas testimony reveals that at least one of these reports (Ms. Illescas' report) may have been used in a retaliatory fashion by Defendants.
(c) Privilege as Qualified
Furthermore, the deliberative process privilege is qualified and can be overcome by a party demonstrating that her need for these materials overrides the interest of the party asserting the privilege in keeping these reports confidential. Education Law, supra, 198 N.J. at 287. In evaluating whether or not there is a compelling need for the documents at issue, the Court should consider the following: a) the relevance of the evidence; b) the availability of other evidence; c) the government's role in the litigation; and d) the extent to which disclosure would hinder frank discussions regarding the contemplated policies and decisions.Id. at 287. For the reasons elucidated above, the Court finds that Plaintiff has demonstrated a compelling need that would overcome the privilege if it applied in this context.
III. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Compel Documents is granted and Defendant's Motion for a Protective Order is denied. As agreed upon by both parties, the reports are subject to the Confidentiality Agreement already in place in this matter.