McConkey v. The Churchill School and Center

Background

Dennis McConkey moved under Federal Rule of Civil Procedure 37 for an order compelling The Churchill School and Center to produce documents, conduct additional electronic searches, and permit an inspection of school premises. The requests concerned McConkey’s claims about the circumstances of his termination, including whether the school’s explanation involving an October 2022 bathroom incident was a pretext for discrimination or retaliation.

The court stated at the outset that the motion was granted in part and denied in part.

Redactions

The court held that Churchill could not unilaterally redact names from responsive documents based on its view that the names were irrelevant or because of general privacy concerns. A protective order already covered confidential information, and the identities of people copied on communications or identified in materials about the age composition of Churchill’s employees could provide context or investigative leads. Churchill could redact only those individuals’ contact information. If contact information was relevant, McConkey could seek it through written questions to the opposing party.

Student files

McConkey sought records concerning students involved in the October 2022 bathroom incident, including possible disciplinary records, arguing that the records could bear on the students’ credibility. The court explained that the Family Educational Rights and Privacy Act requires a significantly stronger showing to justify disclosure of student education records than is required for ordinary business records.

The court denied this request. It found that McConkey had not shown that the student files were needed to support his claims. The central issue was not whether the incident happened exactly as the students described it, but what they told school administrators, whether administrators believed that account, and whether they used the incident as a pretext for a discriminatory or retaliatory termination. The court also found that discovery sought mainly for impeachment must have limits and that McConkey’s interest did not outweigh the students’ privacy interests.

Records concerning discipline imposed by Jason Wallin

McConkey sought documents about Jason Wallin’s discipline of a male student for wearing a tank top. McConkey argued that the incident could show anti-gay bias relevant to whether Wallin discriminated against him. The court found the request too attenuated and disproportionate because it involved a student rather than a teacher, a different type of incident, and no alleged homophobic remarks or indication that the student viewed the discipline as discrimination based on sexual orientation.

The court denied the request except to the extent that Churchill was ordered to produce complaints by students, including the student involved in the incident, against Wallin concerning sex discrimination, including discrimination based on sexual orientation. The court applied the heightened standard for disclosure of student records and found that McConkey had not shown a genuine need for the broader request sufficient to outweigh the student’s privacy interests.

Personnel records

McConkey requested the personnel files of Wallin, Robert Siebert, and Madigan, arguing that they could contain complaints of discrimination or retaliation and information about whether Churchill documented or addressed such complaints. The court found the request for the complete personnel files overbroad because those files could contain unrelated information.

The court ordered Churchill to produce, to the extent they existed, specified materials from those files concerning complaints against Wallin, Siebert, and Madigan about age or sex discrimination, including sexual-orientation discrimination, or retaliation. The production also covered certain discipline, performance criticism or reviews, training, management or communication matters, and pay increases or bonuses connected to such complaints or employment-practices issues. The court otherwise denied the request for personnel records.

Inspection of premises

The court granted McConkey’s request to inspect the girls’ bathroom where the October 2022 incident occurred, the adjoining hallway, and his former classroom. The court found that the physical layout could bear on the plausibility of the students’ account, the adequacy and reasonableness of Churchill’s investigation, and whether the termination decision was based on pretext.

The court rejected Churchill’s argument that existing surveillance footage and a diagram made inspection unnecessary. The footage did not show the bathroom’s interior, and McConkey had agreed that the inspection could occur outside school hours at a mutually acceptable time, minimizing the burden on Churchill, its staff, and its students.

Mooted requests

McConkey sought original versions of two videos and complete footage of the incident, documents about reassignment of his responsibilities after his termination, and documents about Churchill’s financial condition. Churchill stated that these issues had been resolved, and McConkey did not dispute that assertion. The court denied the motion as moot as to these requests.

Electronic searches

McConkey asked Churchill to use additional search terms aimed at finding materials concerning other discrimination or retaliation allegations, comparator evidence, his protected complaints, and discriminatory comments. Churchill agreed to provide a count of the documents returned by the proposed searches. The court therefore denied the request without prejudice to renewal if the parties could not reach agreement after further discussions about the search terms.

Disposition

Judge Lewis J. Liman concluded that the motion was granted in part and denied in part. The clerk was directed to close the motion at Docket Number 27.