In Lyons v. New York Life Insurance Company, 2021 WL 1405602 (S.D.N.Y., 2021), an employment discrimination case, the court granted plaintiff’s motion to compel certain discovery from defendant.
In sum, plaintiff – who worked as a Long-Term Care Consultant (LTCC) – asserts claims for gender and age discrimination and retaliation, as well as for unequal pay, under federal and state law. She alleges, inter alia, that
she was paid less than similarly situated male LTCCs; received unwarranted negative evaluations which worse-performing, younger, male LTCCs did not receive; was passed over for a promotion in favor of a younger, female employee with worse performance than Lyons; was denied certain assignments in favor of worse-performing male LTCCs; and was terminated discriminatorily and in retaliation for complaints of disparate treatment. [Citations omitted; cleaned up.]
Plaintiff sought records containing comparative performance and disciplinary data for all of defendant’s LTCC’s between 2015 and July 30, 2019. Defendant provided plaintiff with such data for the period between 2017 and the end of 2018 (three months after plaintiff was terminated), but argued that pre-2017 information was irrelevant, since the statutes of limitations for plaintiff’s discrimination and retaliation claims preclude liability for any acts before 2017, and post-termination events are irrelevant to any aspect of her claims.
Plaintiff responded
that 2015 data are relevant because, in 2015, NY Life first retaliated against her for complaining “about new male hires being paid more for doing the same work as” her. She also argues that 2015 to 2016 data about comparator LTCCs are relevant to showing that she was discriminated and retaliated against in 2017 and thereafter, as performance and disciplinary data could reflect whether she was treated differently than similarly situated younger or male LTCCs. As to 2019 information, Lyons argues that two older LTCCs were terminated in 2019, purportedly because their positions were “eliminated,” but that two new LTCCs were then hired to replace them, and that LTCC data during the periods leading up to their termination may shed light on NY Life’s treatment of these other older employees. Accordingly, she seeks LTCC data not only for the 2017 to 2018 period already produced, but also for 2015 to 2016 and the first half of 2019. [Citation omitted.]
Resolving this issue, the court explained:
As to pre-2017 information, NY Life’s statute-of-limitations argument is incorrect. It is well established that “expiration of the limitations period does not bar ‘an employee from using [ ] prior acts as background evidence in support of a timely claim.’ ” Davis-Garett v. Urb. Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). NY Life’s response that such uses are limited to hostile-work-environment claims involving the continuing-violations doctrine is meritless. See NYL Resp. at 3 n.6. “Courts in this Circuit have repeatedly held that even when the continuing violation theory does not apply, a plaintiff may seek discovery as to time-barred incidents ….” Deveer v. Gov’t Emps. Ins. Co., No. 07 Civ. 4437 (JS) (AKT), 2008 WL 11449323, at *2 (E.D.N.Y. May 30, 2008) (collecting cases); see Govia v. Century 21, Inc., 140 F. Supp. 2d 323, 325 (S.D.N.Y. 2001) (finding no basis for application of continuing-violations doctrine but holding that plaintiff “may still seek discovery regarding the alleged incidents that occurred before” timely claims accrued); see also Deluca v. Sirius XM Radio, Inc., No. 12 Civ. 8239 (TPG), 2016 WL 3034332, at *1–2 (S.D.N.Y. May 27, 2016) (under the “liberal civil discovery rules” appropriate for employment-discrimination cases, plaintiff was entitled to discovery regarding pay disparities outside the statute of limitations). In fact, contrary to NY Life’s attempt to distinguish it, the Second Circuit’s decision in Davis-Garett specifically held that background evidence is admissible “even with respect to a claim of discrete discriminatory or retaliatory acts,” 921 F.3d at 42 (emphasis added), after separately discussing its relevance in the context of continuing violations, id.