Court Orders Pre-Statute of Limitations “Comparator” Discovery in Gender Pay and Sexual Orientation Discrimination Lawsuit Against Sirius XM Radio

In Deluca v. Sirius Xm Radio, Inc., No. 12-CV-8239, 2016 WL 3034332 (S.D.N.Y. May 27, 2016), an employment discrimination case, plaintiff alleged that “she was paid less than her male peers, that she was removed from her supervisory authority, and that she was subjected to anti-gay slurs in the workplace.”

To flesh out her claims, plaintiff sought, in discovery, information about defendant’s employees from the year 2000, when she began working at Sirius XM Radio, to the present. Defendant produced information from 2006 to the present (as far back as the statute of limitations), but refused to produce documents from 2000 onward.

Judge Griesa explained the relevant legal principles governing this discovery dispute:

Management of discovery lies within the province of the district court, which has wide discretion in its handling of pre-trial discovery. In resolving discovery disputes, the court is guided by the standards supplied by Federal Rule of Civil Procedure 26(b), which courts construe broadly. In the context of employment discrimination cases, of which this case is one, courts typically apply more liberal civil discovery rules, giving plaintiffs broad access to employers’ records in an effort to document their claims. Courts have noted that, in such cases, the scope of discovery must go beyond the specifics of the plaintiffs claim.

Plaintiff contended that she “needs ‘Potential Comparator’ information from the beginning of her career at Sirius XM Radio in order to establish that, from the outset, she was paid at a lower rate than her male peers”, and defendant “responds by simply contending plaintiff is not entitled to discovery outside of the period of statute of limitations—in this case, 2006.”

Applying the law, the court held:

[D]efendant’s position is without merit, and that the information plaintiff seeks from 2001 to present is likely to reveal information that is relevant to plaintiff’s discrimination claims. Specifically, the court finds that the information sought will aid in understanding whether or to what extent plaintiff started off and continued at a lower pay rate than her male peers. [T]he specific discovery plaintiff seeks—consisting of documents outside of the relevant statute of limitations that may show a pattern of pay disparity that began when plaintiff was promoted—is both reasonable and rests squarely within Second Circuit precedent. In an Equal Pay Act case involving alleged payment of unequal wages to employees on the basis of sex, the Second Circuit observed the relevance of establishing comparators as of the time that the initial pay differential was created. This reasoning flows from the logical inference that, if, at the time of her promotion, plaintiff was given a lower salary than her male counterparts because of her gender or sexual orientation, then there are grounds to believe that the salary gap between plaintiff and her male counterparts persisted throughout plaintiff’s employ.

The court declined, however, to grant plaintiff discovery back to 2000, but only back to the date in 2001 when she became a producer (when, according to the complaint, the pay discrimination allegedly began).


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