Court Orders Discovery of Other Employees’ Personnel Records in Whistleblower Retaliation Case

In McMahon v. New York Organ Donor Network, Inc., No. 156669/12, 2016 WL 1251204 (N.Y. Sup. Ct. Mar. 28, 2016), the plaintiff was terminated from his position as a probationary Transplant Coordinator of the New York Organ Donor Network.

Plaintiff claimed that he was fired after making complaints that defendant’s employees were procuring organs from individuals without performing legally-required tests (and that in some instances organs were taken from individuals who were still showing clear signs of life), in violation of New York’s Whistleblower Law (New York Labor Law § 740).

During discovery, plaintiff sought – as is typical in wrongful termination cases where the employer claims that the plaintiff was terminated for performance reasons – documents relating to evaluations and reviews of defendant’s other current and former probationary employees.

Specifically, plaintiff demanded the following discovery:

With regard to any current or former NYODN employees who held the position of Transplant Coordinator’ with NYODN and were classified as a probationary employee,’ produce all documents: (1) relating to any evaluations or reviews conducted by NYODN of these employees; (2) reflecting whether or not these employees became “permanent” employees of NYODN or were otherwise hired/fired by NYODN; and (3) relating to NYODN’s decision to hire/fire these employees or otherwise take them off their probationary status. This request seeks documents regarding those employees hired by NYODN between January 1, 1995 and the present.

Plaintiff claimed that the sought-after records are “necessary because defendant claims that plaintiff was fired due to substandard work performance and defendant points to plaintiff’s negative evaluations to justify plaintiff’s termination” and that “he needs the [personnel records] of current and former probationary employees to test the merits of defendant’s alleged justification for plaintiff’s termination.”

The law, as summarized by the court:

CPLR 3101(a) entitles parties to full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof. What constitutes material and necessary should be construed liberally to require disclosure of any facts bearing on the controversy which assist by sharpening the issues and reducing delay. The test is one of usefulness and reason. A trial court is vested with broad discretion in its supervision of disclosure.

Personnel records must be disclosed, at least to the extent of requiring an in camera inspection by the court, whenever there is a reasonable possibility that these files contain relevant and material documents. …

In whistle blower actions, it is often difficult to ascertain an employer’s motivation for terminating or taking other personnel action against an employee. Personnel records of employees in similar positions may serve as a useful comparison with a plaintiff’s personnel file. The use of comparison evidence allows a plaintiff to discover an employer’s intent and test the proffered reason for taking the adverse employment action[.] … Comparison evidence may be relevant to the issue of intent in a case such as the instant one where plaintiff is attempting to show that she was discharged from employment because of her whistle blowing activities. Reviewing the performance evaluations of other employees could allow a plaintiff to show that the employer’s stated reasons for a plaintiff’s termination were baseless or a pretext. (Emphasis added.)

Applying these principles, Judge Bluth granted plaintiff’s motion to compel, but limited its timeframe. She explained:

Plaintiff’s Personnel Requests are reasonable. Although defendant provided plaintiff with information relating to probationary employees who were terminated or resigned, plaintiff’s Personnel Requests relating to employees who were not discharged are also reasonable. Comparing plaintiff’s performance evaluations with those of other Transplant Coordinators, both terminated and retained, might allow plaintiff to show that other probationary employees with similar performance evaluations were not terminated, thereby countering defendant’s claim that plaintiff was discharged for poor performance. Plaintiff’s Personnel Requests are also narrowly tailored because plaintiff seeks documents from probationary employees who held the position of Transplant Coordinator. Plaintiff does not request the evaluations for all of defendant’s employees. Plaintiff also seeks documentation relating to whether this subset of defendant’s employees became permanent employees and documentation supporting the decision to retain or terminate these workers instead of requesting the entire personnel file.

However, plaintiff’s demand for Personnel Requests from January 1, 1995 to the present is burdensome. … Here, the Court must balance plaintiff’s request for relevant documents with the burden of producing personnel documents from the last 20 years. These documents will likely contain sensitive information that will require a significant amount of redactions. A more reasonable time period would include a few years before and after plaintiff’s employment with defendant. Therefore, the Court will grant plaintiff’s motion to compel the production of the Personnel Requests from January 1, 2009 through December 31, 2013.

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