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March 22, 1991


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


Plaintiff, a black woman, brings this action alleging discrimination on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and alleging various state law violations including breach of contract, tortious inference with contract, negligent infliction of emotional distress and defamation. Defendant has moved to dismiss the complaint in its entirety or for summary judgment on all counts pursuant to Fed.R.Civ.P. 56. Plaintiff cross-moved for an order compelling discovery pursuant to Rule 37*fn1 or, in the alternative, for a continuance of defendant's motion under Rule 56(f). For the reasons set forth below, defendant's motion is granted in part, denied in part and continued in part. Plaintiff is granted a 60-day continuance in order to conduct limited discovery relating to her Title VII claim.


It is undisputed that Lucy Carter ("Carter"), a 55-year old black woman, was first hired by AT & T Communications ("AT & T") in May 1957 and from 1972 to 1984 held the position of Group Manager in an AT & T Traffic Service Position System ("TSPS") office in New York City. See Def. Rule 3(g) Stmt. ¶ 1-2; Pl. Rule 3(g) Stmt. at 4. It is similarly undisputed that plaintiff was never formally terminated by AT & T; rather, on June 7, 1987 plaintiff accepted a new position at New York Telephone. Id. Although the facts and events beginning in 1984 and culminating in plaintiff's transfer in 1987 are in dispute, the parties' respective contentions can be easily summarized.

In January 1985, Richard Moccia ("Moccia") replaced Delores Thompson as Office Manager of the TSPS office where plaintiff worked. Moccia Aff. ¶ 4. In June 1985, near the end of the six-month performance development period, Moccia conducted a review of plaintiff's records including the Operator Observation Records she regularly prepared. Id. ¶ 10. He alleges that he detected at least 30 incorrect false entries for the preceding six months by comparing plaintiff's operator observances with payroll time reports for operators in the group she managed. Id. ¶ 11. Several of the discrepancies involved instances where Moccia concluded that Carter had entered operator observations at a time when either Carter or the operator was not at work. Id. ¶ 13 & Exh. B. Moccia interviewed several operators who confirmed to him that no observations had been made on the dates recorded by plaintiff. Id. ¶ 12.

Moccia claims that he and Acting District Manager David McGuffey ("McGuffey") confronted Carter with the discrepancies, informed her that her actions were in violation of AT & T's Code of Conduct requiring accurate recordkeeping and gave her the opportunity to explain which they state she was unable to do. Id. ¶¶ 15, 17 & Exh. C.

On June 18, 1985, plaintiff was demoted to the position of Operator, a non-management position at the level where plaintiff had last performed satisfactorily. Id. ¶¶ 16, 18. Plaintiff's position as Group Manager was thereafter filled by a black female. Id. ¶ 20. In June 1985, seven of the nine Group Managers in the office in which plaintiff worked were black. Id. ¶ 19. AT & T alleges that plaintiff was an at-will employee and that under the employee policies in force in 1984-85, cause was not required to demote supervisory employees. Gonzales Aff. ¶ 8.

In opposition to defendant's motion, plaintiff alleges that in December 1984 Thompson informed her that her performance appraisal rating for the year would be a G and that Division Manager Charles Herman thereafter assured plaintiff that the G rating would not be changed. Carter Aff. ¶¶ 6, 11. Plaintiff denies that any discrepancies ever existed with respect to her work. Id. ¶ 13. Plaintiff claims that she was never told that a further six-month performance appraisal would be performed after she received the G- rating. Id. ¶ 18. Plaintiff asserts that unlike white employees, she was not given adequate time to disprove the discrepancies Moccia had detected, that her personal log book was "confiscated" while she was on vacation in June 1985 making it impossible for her to respond to the accusations and that Moccia refused her request to stay at her desk after her scheduled work hours in order to review her records. Id. ¶¶ 14-16, 19. Finally, plaintiff names three AT & T supervisors who she states told her that no demotion would occur without just cause. Id. ¶ 26.

On August 22, 1985 plaintiff filed a complaint with the New York State Division of Human Rights ("DHR") alleging employment discrimination on the basis of age, race and color. Cutlip Aff., Exh. A. Plaintiff claims that a "supervisory employee" at AT & T told her that her only option was to file a complaint with DHR. Carter Aff. ¶ 29. DHR notified the Equal Employment Opportunity Commission ("EEOC") of Carter's complaint. Cutlip Aff., Exh. B.

On March 9, 1988 DHR held a fact-finding conference in which Thompson, Moccia, Mullen, McGuffy, Michael R. Dacey, an attorney for AT & T, and plaintiff participated. Id., Exh. C. On September 29, 1988 DHR issued a finding of no probable cause. Id., Exh. E. On September 30, 1988, after reviewing DHR's findings, EEOC found that plaintiff's demotion "was unrelated to unlawful discrimination based on age, race and color" and dismissed her EEOC complaint. Id., Exh. F at 2. On June 2, 1989 EEOC issued plaintiff a Right-to-Sue letter. Id., Exh. G. Plaintiff filed her complaint in this action on September 5, 1989. AT & T filed its answer on December 15, 1989.

The original discovery cutoff date was May 11, 1990. On May 2, 1990 plaintiff in writing requested an extension. On May 8, 1990 the Court granted plaintiff a two-month extension for discovery, from May 11, 1990 to July 11, 1990, with the pretrial order due July 24, 1990 and final pretrial conference to be held July 30, 1990.

Plaintiff conducted limited discovery. Plaintiff's First Set of Interrogatories and First Request for Production of Documents was dated July 2, 1990. Carter Aff., Exh. A.*fn3

By letter dated July 10, 1990, plaintiff requested another extension of discovery. On July 11, 1990 the Court denied plaintiff's request. On August 3, 1990 after the close of discovery, AT & T served its responses to plaintiff's July 2 interrogatories and document requests. Carter Aff., Exh. 3. Defendant objected to Interrogatory Nos. 1, 3-6, 9 and 11 which requested inter alia the identity of persons involved in giving plaintiff a G- rating, all guidelines regarding employee appraisals both within AT & T and in the industry in general, documents and facts pertaining to administrative or other hearings regarding the ...

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