Testimony of Non-Party Prior Employee (and Alleged Discrimination Victim) is Relevant in Disability Discrimination and Retaliation Case, Court Rules

In a recent decision in the case of Vale v. Great Neck Water Pollution Control District, 14-cv-4229 (E.D.N.Y. Jan. 8, 2016), a disability discrimination and retaliation case, the court denied the motion of a non-party – a person who had allegedly discriminated against other employees, but who never worked with or supervised plaintiff – to quash the subpoena directed to him.

Plaintiff asserted claims of disability discrimination, failure to accommodate, and retaliation. Although plaintiff only named the District as a defendant, her “complaint makes continued reference to the acts of Christopher Murphy, the District Superintendent who is alleged to have personally made decisions regarding Plaintiff’s employment.”

The subpoena sought the testimony of a non-party witness named Gary Arman, a former employee of the District. Mr. Arman moved to quash the subpoena, on the ground that, for example, the subpoena sought irrelevant evidence. He argued that:

  • He was hired on December 15, 2013, almost a year after Vale’s January 2013 termination;
  • He has no knowledge of Vale’s job duties, her job description or her job responsibilities;
  • He has no knowledge regarding the circumstances in which the Water District brought disciplinary charges against Vale;
  • He has no knowledge regarding the circumstances under which Vale’s employment with the Water District ended;
  • He has no knowledge regarding Vale’s disability or her requests for an accommodation;
  • He has no knowledge of what employee, if any, replaced Vale after her termination; and
  • He does not personally know Vale and has no information regarding the allegations in her complaint.

The District separately argued that Mr. Arman should not be forced to testify because

  • Arman was hired in December of 2013; Vale was terminated in January 2013; The two never worked together;
  • Arman was never a supervisor to Vale and has no knowledge of the quality of Vale’s work; and
  • Arman does not have any knowledge of disciplinary action imposed on Vale or regarding the grounds for her termination.

Plaintiff argued that “disciplinary action taken against Arman by the District is relevant to Vale’s own claims of retaliation and that “like her, Arman was a victim of retaliatory termination by Murphy.”

The court – providing an overview of the law in this area – agreed with plaintiff, and held that the subpoena seeks relevant evidence:

Plaintiff claims that she was retaliated against and fired by Murphy. She also alleges that Murphy has a propensity to retaliate against employees who exercise their employment rights. Evidence that Murphy has acted similarly toward Plaintiff and other District employees may be admissible on the issue of intent. In Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003), the Second Circuit considered an “atmosphere of retaliation in the workplace,” including testimony from various employees from plaintiff’s office as evidence of retaliation. Similarly, in Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 150-151 (2d Cir. 2010), the Second Circuit noted that race related comments made by plaintiff’s direct supervisor to two other employees were relevant to the plaintiff’s claims of retaliation. In Ortega v. Fedcap Rehabilitation Svcs., Inc., 2003 WL 21383383, at *1 (S.D.N.Y. June 16, 2003), the court found that similar-act complaints against plaintiff’s supervisor by other employees were discoverable because intent was at issue. See also Flanagan v. Travelers ins. Co., 111 F.R.D. 42, 48 (W.D.N.Y. 1986) (“Evidence of general patterns of discrimination by an employer is clearly relevant in an individual disparate treatment case, and is therefore discoverable pursuant to Fed. R. Civ.P. 26(b)(1).” (citations omitted). Moreover, Courts in this district have recognized that direct evidence of an employer’s discriminatory intent will rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof of discriminatory conduct. Weber v. City of New York, 973 F.Supp.2d 227, 249 (E.D.N.Y. 2013). Given this precedent, the testimony sought from Arman is relevant on the issue of Murphy’s intent and retaliatory conduct.

The court cautioned, however that it “makes no ruling as to the admissibility at trial of any evidence discovered as a result of enforcement of this subpoena.”

This Order is nevertheless helpful to employment discrimination plaintiffs who frequently at an evidentiary disadvantage when seeking to hold employers liable for allegedly discriminatory conduct.


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