In Devany v. United Parcel Services, Inc., 18-cv-6684, 2020 WL 5876245 (S.D.N.Y Oct. 2, 2020), a disability discrimination case, the court upheld the denial of plaintiff’s request for discovery relating to other employees.
In this case, plaintiff asserts that he was terminated because of his disability (alcoholism), and that the defendant’s proffered reason (the violation of a “last chance agreement”) was a mere pretext for discrimination.
Magistrate Judge Robert W. Lehrburger, to whom the court referred this discovery dispute, had concluded that
[t]he only potentially relevant comparators to Plaintiff are supervisors who had offenses related to drug or alcohol abuse or failure to comply with mandated treatment requirements. Records related to supervisors who had other types of offenses are of minimal to no relevance, and Plaintiff’s demands for them are not proportional to the needs of the case. Accordingly, Plaintiff’s motion in this respect is denied.
Plaintiff objected to this order, arguing that it “improperly limited the scope of document production to documents involving supervisors accused of offenses related to drug or alcohol abuse or failure to comply with mandated treatment requirements,” and that he needs the documents because they evidence defendant’s “lenient disciplinary nature” – making it more likely that the reason for plaintiff’s termination was a pretext.
Defendant opposed plaintiff’s objection, arguing that it already produced thousands of documents, and that the documents sought by plaintiff are not relevant, since “supervisors who were disciplined for performance issues unrelated to drugs or alcohol cannot arguably be considered ‘comparators’ to Plaintiff.”
After summarizing the standard of review applicable to a Magistrate’s ruling on non-dispositive pretrial matters (codified in Rule 72 of the Federal Rules of Civil Procedure), the court explained:
[Plaintiff] contends that he needs documents related to other UPS employees to show that the stated reason for his termination was pretextual. To make this showing, however, the other employees must be similarly situated to Devany, and they must have engaged in similar misconduct. See, e.g., Rivera v. City of Torrington Bd. of Educ., No. 3:06-CV-1752(WWE), 2008 WL 2414306, at *4 (D. Conn. June 12, 2008) (“Plaintiff contends that defendants’ reasons for his termination were pretextual because other employees committed similar violations and were not fired. A showing that similarly-situated employees outside the protected class received more favorable treatment can serve as evidence of pretext, but only if the plaintiff shows that he was ‘similarly situated in all material respects’ to the comparators…. To be similarly situated in all material respects, a plaintiff must show that the individuals were subjected to the same discipline standard and that these individuals engaged in conduct comparable to that of the plaintiff.”) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).
*3 Here, Devany does not explain how supervisors who were not accused of “offenses related to drug or alcohol abuse or failure to comply with mandated treatment requirements” (Order (Dkt. No. 45)) could be similarly situated to him. That employees accused of different types of misconduct may have been subjected to less severe disciplinary measures has – as the magistrate judge found – little to no relevance. E.g. Albury v. J.P. Morgan Chase, No. 03 CIV. 2007 (HBP), 2005 WL 746440, at *10 (S.D.N.Y. Mar. 31, 2005) (coworker was not similarly situated where his “offense was qualitatively different from plaintiff’s”). The Court therefore agrees with Judge Lehrburger that the production of these materials would be disproportionate to the needs of this case. See Homeward Residential, Inc. v. Sand Canyon Corp., No. 12 Civ. 5067 (AT) (JLC), 2016 WL 11662178, at *3 (S.D.N.Y. Feb. 3, 2016) (“[R]ecent amendments to Rule 26 of the Federal Rules of Civil Procedure were enacted to ‘encourage judges to be more aggressive in identifying and discouraging discovery overuse’ by emphasizing the need to analyze proportionality before ordering production of relevant information….”) (quoting Rule 26(b)(1) advisory committee’s notes to 2015 amendment).
Based on this, the court concluded that plaintiff failed to meet his “heavy burden” to show that Magistrate Judge Lehrburger’s discovery ruling was “clearly erroneous or contrary to law.”