Local 3621, EMS Officers Union, DC-37, AFSCME, AFL-CIO v. City of New York

Background

The plaintiffs are Local 3621, two FDNY employees, and other parties identified in the caption. They brought a putative class action against the City of New York, the FDNY, DCAS, and John and Jane Does, alleging disparate treatment and disparate impact in promotions above lieutenant within the FDNY’s Emergency Medical Services Bureau. They asserted claims under 42 U.S.C. §§ 1981 and 1983 and the New York State and New York City Human Rights Laws.

The defendants moved to compel testimony from Vincent Variale, president of Local 3621, on four topics concerning statements by EMS employees about promotions. The defendants also sought three emails. Plaintiffs’ counsel had stopped Variale from fully answering questions about the topics and withheld the emails based on a claimed “Labor Union Leader Privilege.” The plaintiffs cross-moved for a protective order barring discovery about Renae Mascol’s disciplinary history at EMS.

Rules and analysis

Under Federal Rule of Civil Procedure 26(b)(1), discovery may include nonprivileged information relevant to a claim or defense and proportional to the needs of the case. A party seeking to compel discovery must first show relevance and proportionality. The party resisting discovery must then show good cause for withholding it. A protective order under Rule 26(c) requires a specific showing of good cause to protect against harms such as undue burden, embarrassment, or oppression.

The court rejected plaintiffs’ objection that the defendants’ request was improperly made by email. Variale had already been deposed, had partially testified about the topics, and had been directed not to answer. The court treated the email as an effort to meet and confer about the existing dispute rather than as a new discovery request.

The court held that the claimed labor-union-leader privilege did not prevent Variale from answering. Plaintiffs identified no Second Circuit case recognizing that privilege, and the court found no applicable authority recognizing a broad privilege for communications between union officials and members. The cases recognizing some form of union-related protection involved communications made during anticipated or ongoing disciplinary proceedings. Because the topics here did not concern disciplinary proceedings, the court concluded that the claimed privilege did not apply even assuming such a protection existed.

The court also found the requested information relevant. The defendants sought the identities and information needed to evaluate complaints about alleged discriminatory promotional practices by Local 3621 members. The court noted that the union members’ experiences could be relevant to the putative class claims and defenses. It limited the discovery by allowing the defendants to depose Variale on the four topics for no more than one hour and stating that the defendants could not use the information to seek later discovery directly from absent class members.

As to Mascol, the court held that her disciplinary history at EMS was relevant and discoverable. Such records could bear on whether the defendant employer had a legitimate, nondiscriminatory reason for an employment decision and on issues concerning her suitability as a class representative and credibility. The court distinguished the plaintiffs’ cited cases involving disciplinary records from former or other employers, explaining that Mascol’s records were from the employer accused of discrimination. The court did not decide what role Mascol’s disciplinary history ultimately played in the promotional process or whether it would be sufficient to support judgment for the defendants.

Disposition

The court granted the defendants’ motion in part, to the extent that they could depose Variale on the four topics for no longer than one hour. The court denied the plaintiffs’ cross-motion for a protective order concerning Mascol’s disciplinary history. The court stated that the separate sealing dispute would be addressed by separate order and directed the Clerk to close the defendants’ motion docket entry. Sarah L. Cave signed the order as United States Magistrate Judge.