Qamar v. Sheridan Healthcare of Connecticut, P.C.

          RULING ON PLAINTIFF'S MOTION TO COMPEL (DOC. NO. 31) AND PLAINTIFF'S MOTION FOR IN CAMERA REVIEW (DOC. NO. 34)

          Robert M. Spector, United States Magistrate Judge.

         I. BACKGROUND

         The plaintiff, Fauzia F. Qamar, the only full-time anesthesiologist employed by the defendant, Sheridan Healthcare of Connecticut, P.C., commenced this employment discrimination action on August 13, 2018 (Doc. No. 1). She filed an Amended Complaint on October 23, 2018 (Doc. No. 18) and a Second Amended Complaint on February 15, 2019 (Doc. No. 28). She alleges that she was discriminated against on the basis of her sex and retaliated against for complaining that her immediate supervisor tampered with drugs she was to administer to her patient, potentially endangering the life of her patient and costing the plaintiff her medical license. (Doc. No. 28).

         On July 3, 2019, the plaintiff filed the pending Motion to Compel (Doc. Nos. 31-32) and Motion of In Camera Review (Doc. Nos. 33-34), both of which were referred to this Magistrate Judge on July 11, 2019 (Doc. No. 36). On July 24, 2019, the defendant filed its briefs in opposition to both motions. (Doc. Nos. 37-38). Discovery was scheduled to close in this case on August 1, 2019. (Doc. No. 20). For the reasons stated below, the plaintiff's Motion to Compel (Doc. No. 31) is granted in part and the Motion for In Camera Review (Doc. No. 33) is granted.

         II. MOTION TO COMPEL

         A. LEGAL STANDARD

         Parties may “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and is proportional to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). The proportionality determination limits the scope of discovery by “considering the importance of the issues at stake[, ]” the “amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense . . . outweighs the likely benefit” of the discovery sought. Fed.R.Civ.P. 26(b)(1).

         B. DISCUSSION

         In the Motion to Compel, the plaintiff asks the Court to order the defendant to produce information of “comparators” to establish that similarly situated individuals were treated differently than the plaintiff. (Doc. No. 32, at 5-6). Specifically, the plaintiff seeks responses to her Request Nos. 17-19 and 21-23, in which she requests all documents contained in the personnel files of three non-parties, as well as documents concerning these individuals' performance. (Doc. No. 32 at 7-8 & Ex. A at 3-4, 6-8). The defendant objects on grounds that confidential personnel information of the defendant's employees, who are not parties to this action, is protected from disclosure by the Personnel Files Act, Conn. Gen. Stat. §§ 31-128a et seq., and common law, and that the three individuals are not similarly situated to the plaintiff. (Id.; see also Doc. No. 37 at 2-5). Additionally, the defendant argues both that the personnel files necessarily contain irrelevant information, including confidential, highly private records and that the request is overly broad because it is not limited to any timeframe. (Doc. No. 37 at 6).

         1. COMPARATOR EVIDENCE

         “A plaintiff relying on disparate treatment evidence must show she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (citation and internal quotations omitted). “A plaintiff and potential comparators . . . need not be ‘identical[.]'” Metcalf v. Yale Univ., No. 15 CV 01696 (VAB), 2017 WL 627423, at *5 (D. Conn. Feb. 15, 2017) (quoting Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000)). The “bar is set relatively low[, ]” Bagley v. Yale Univ., No. 13 CV 1890 (CSH), 2015 WL 8750901, at *2 (D. Conn. Dec. 14, 2015), as a comparator “must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” Id. (citation and internal quotation omitted); see Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001) (holding that comparators must be similar in “significant respects”); see also Shumway v. United Parcel Svc., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (affirming grant of summary judgment for the defendant on grounds that, inter alia, the individuals the plaintiff attempted to compare herself to were not “similarly situated in all material respects.”). “An employee is similarly situated to co-employees if they were (1) ‘subject to the same performance evaluation and discipline standards' and (2) ‘engaged in comparable conduct.'” Ruiz v. Cty. of Rockland, 609 F.3d 486, 493-94 (2d Cir. 2010) (quoting Graham, 230 F.3d at 40). “[A] key determinant as to the employees who are proper comparators with an employment discrimination plaintiff is whether they shared a common supervisor.” Russo-Lubrano v. Brooklyn Fed. Sav. Bank, No. CV-06-672 (CPS)(VVP), 2007 WL 2126086, at *1 (E.D.N.Y. July 23, 2017).

         In this case, the plaintiff seeks documents contained in the personnel files of three male anesthesiologists employed by the defendant during the relevant time period, who held the same job title as the plaintiff, possessed the same or similar qualifications to the plaintiff, reported to the same supervisor, and were to be judged by the same standards as the plaintiff. (Doc. No. 32 at 9). The defendant, however, contends that the plaintiff's co-workers are not comparators because they did not engage in conduct similar to the plaintiff's. (Doc. No. 37 at 2-3).

         Rather than just take the defendant's word for it, the plaintiff is entitled to discover whether these individuals have a record of criticism or performance issues and if so, how they were addressed by their mutual supervisor and whether there were complaints or investigations into these individuals for any misconduct. This issue of whether these individuals are ultimately appropriate comparators may be addressed at the summary judgment stage. Kharazian v. Gerald Metals, LLC, No. 3:16 CV 1762 (VAB), 2017 WL 11017757, at * 1 (D. Conn. Nov. 9, 2017) (declining to address, in the context of discovery, whether an individual is an appropriate comparator); see, e.g., Shumway, 118 F.3d at 64 (affirming summary judgment for the defendant on grounds, inter alia, that the individuals the plaintiff attempted to compare herself to were not “similarly situated in all material respects.”); see also Mandell, 316 F.3d at 369 (holding that “[o]rdinarily, the question whether two employees are similarly situated is a question of fact for the jury.”). That said, as explained below, the plaintiff's requests, as worded, are overly broad.

         2. PRI ...