Age Discrimination Plaintiff’s Motion to Compel Deposition Testimony of Comparator Granted

In Rosen v. N.Y.C. Department of Education, et al., 18-cv-06670, 2021 WL 5279396 (S.D.N.Y. Nov. 12, 2021), an age discrimination case, the court granted plaintiff’s motion to compel a deposition of a non-party witness, namely, plaintiff’s alleged (younger) “comparator.”

In sum, plaintiff alleges (among other things) that the majority of her teacher duties were assigned to a special education teacher (Malverty) who was younger than plaintiff, and that she was “singled out by Defendants for worse treatment in comparison to her younger colleagues, which included Malverty.”

Plaintiff served a deposition notice seeking to depose this person, but defendants objected on the ground of “relevance.”

After summarizing the applicable law – including that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case”, pursuant to Federal Rule of Civil Procedure 26(b)(1) – the court concluded that the subject testimony was, indeed discoverable.

From the decision:

Malverty certainly has testimony to provide that is relevant to Plaintiff’s remaining age-related claims since Plaintiff alleges that Malverty, a younger worker, was given Plaintiff’s job duties and was treated more favorably than Plaintiff. Defendants appear to suggest that, since Plaintiff already obtained deposition testimony from Defendant Melitina Hernandez (“Hernandez”), who was “the decision-maker,” regarding Plaintiff’s job duties that Malverty was asked to assume, Malverty’s deposition testimony is not needed. (See Defs.’ 11/5/21 Resp. at 2.) However, Plaintiff is not limited in discovery to obtaining information only from the named Defendants themselves, but is entitled to discovery from other witnesses who have relevant knowledge, particularly a witness like Malverty who is lies at the center of several key allegations in the Amended Complaint.

The court concluded that, in its discretion, Malverty’s deposition testimony is relevant and proportional to the needs of the case.

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