In Diaz v. Minhas Construction Corp., LLC, No. 2019-11504, 500909/19, 2020 N.Y. Slip Op. 06496, 2020 WL 6603105 (N.Y. App. Div. 2 Dept. Nov. 12, 2020) – an employment discrimination/sexual harassment case – the court reversed a lower court order denying plaintiff’s motion to compel certain discovery relating to other employees who engaged in conduct similar to that for which plaintiff’s employment was terminated.
In sum, plaintiff alleged that defendant subjected her to sexual harassment throughout the course of her employment, which defendant terminated after weeks of rejecting these sexual advances.
After reviewing the pertinent “black letter” law, the court explained:
Since the plaintiff alleges disparate treatment and seeks to raise an inference of discrimination, she is entitled to discovery of documents regarding other employees who engaged in conduct similar to that for which she was terminated, as such documents may indicate that some or all of those employees were not terminated and may have been disciplined less severely or not at all. As such, the Supreme Court improvidently exercised its discretion in limiting the plaintiff’s discovery to only those employees who had actually been terminated for substantially the same reason as the plaintiff.
In the exercise of this Court’s discretion, and mindful of the fact that records concerning employees may contain privileged and/or sensitive information of a highly personal nature, the defendant is directed to submit documents covering the three-year period immediately preceding the termination of the plaintiff’s employment to the Supreme Court for an in camera review and inspection and for a determination whether all or parts of the records produced by the defendants contain unprivileged matter and are material and relevant to the issues placed in controversy by the plaintiff.