Court Denies Motion to Compel Discovery of Religious Discrimination Complaints, Pending Supplemental Information Relating to FRCP 26(b)(1) Proportionality

In Taylor v. Metropolitan Transportation Authority, 18-CV-1278, 2019 WL 2766502 (S.D.N.Y. July 2, 2019), the court discussed a common discovery issue in employment discrimination cases, namely, the extent to which a plaintiff may obtain through discovery entity-wide complaints of discrimination.

In this case, plaintiff asserts claims of discrimination and retaliation, and specifically that her supervisor (Mr. Ashraf) pressured her to convert to Islam. She moves to compel production of documents related to all formal complaints of religious discrimination or retaliation made in the past five years against defendant MTA.

The court discussed the relevance and discoverability of such evidence in the context of discrimination and retaliation cases:

Where a plaintiff’s disparate treatment discrimination claim requires use of comparators, evidence regarding similarly situated employees would be relevant. See Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990). Courts have been hesitant, however, to expand the scope of discovery to all complaints company-wide where the individual plaintiff has not alleged a company-wide practice of discrimination. See Curtis v. Citibank, N.A., 70 Fed. Appx. 20, 24 (2d Cir. 2003) (noting discovery often limited to those of plaintiffs’ “supervisors and to their division”); Chen-Oster v. Goldman, Sachs & Co., 293 F.R.D. 557, 567 (S.D.N.Y. 2013). Here, not only is there no allegation that the MTA had a recurring problem with religious discrimination or retaliation, Plaintiff is not even bringing a disparate treatment claim.1 Plaintiff is alleging specific instances of harassment expressly invoking Plaintiff’s religion. Further, Plaintiff alleges that only Mr. Ashraf created a hostile work environment by pressuring her to convert to Islam. Compl. ¶¶ 19-28. In the absence of any showing that a comparator would be required, claims of other religious discrimination would not be relevant or necessary to Plaintiff’s prosecution of this case.

In contrast, retaliation claims have been treated by courts similarly to disparate treatment claims, permitting use of evidence regarding similarly-situated employees. See Ri Sau Kuen Chan v. NYU Downtown Hosp., No. 03-CV-3003 (CBM), 2004 WL 1886009, at *5 (S.D.N.Y. Aug. 23, 2004) (finding plaintiffs must still refute defendants’ non-retaliatory reasons). Plaintiff therefore will carry the burden of refuting any non-discriminatory justification given by Defendants for Plaintiff’s termination. Records of other religious discrimination and retaliation complaints, especially the manner they were handled by Defendants, may therefore be relevant to Defendants’ intent and knowledge.

The court, however, denied plaintiff’s motion without prejudice, noting that neither party provided enough information as to how the sought discovery satisfies the “proportionality” factor of Federal Rule of Civil Procedure 26(b)(1).

On this point, it explained:

The assistant vice president of EEO investigations Antonio Seda testified that he “think[s] we can run” a “data analytic” query to efficiently determine the number of formal complaints involving a certain type of complaint. (ECF 68-1 at 3). Because neither party provided supplemental briefing on the issue, it is still an open question whether such a query is actually feasible. If the query ultimately proves to be unworkable, Defendants would be required to run a manual search of all complaints, which could impose a substantial burden on Defendants. (ECF 68 at 2).2 To better understand the actual burden and expense imposed by searching for responsive documents, Defendants shall provide, by July 12, 2019, a supplemental submission: (1) attaching the full transcript of the May 2, 2019 deposition of Antonio Seda, and (2) identifying whether a digital “data analytic” query could be run to determine the number of formal complaints involving the New York City Transit Authority3 specifically identifying religious discrimination and retaliation, as well as the time necessary to conduct such a query.