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TOLIVER v. SULLIVAN DIAGNOSTIC TREATMENT CTR.

April 14, 1993

TOMMIE L. TOLIVER, Plaintiff,
v.
SULLIVAN DIAGNOSTIC TREATMENT CENTER (SDTC), Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Tommie L. Toliver ("Toliver") brought a pro se suit against the Sullivan Diagnostic Treatment Center ("SDTC") under Title VII of the Civil Rights Act of 1964 as amended, 42 USC ยง 2000-e, on grounds of discriminatory dismissal and failure to hire him as a counselling supervisor because of race. Toliver sought relief from the New York State Division of Human Rights and the federal Equal Employment Opportunity Commission but received adverse determinations from the state agency on August 30, 1988 and the EEOC on August 12, 1989, as well as on an earlier complaint to the State Division filed December 1, 1987.

 I granted summary judgment for defendant on February 1, 1993, but allowed Toliver 45 days to move for reconsideration. I grant the application for reconsideration but adhere to the original decision for the reasons set forth in the memorandum order of February 1, 1993 and the additional reasons which follow.

 II

 Toliver claims that discovery granted him by United States Magistrate Judge Mark D. Fox was not provided, but attaches no papers indicating that he had ever sought to compel compliance. Moreover, there is no indication of what the discovery assertedly not provided would show which would have affected the proper resolution of defendant's motion. See Burlington Coat Factory Warehouse Corp. v. Esprit de Corp, 769 F.2d 919 (2d Cir. 1985).

 Toliver further complains that defense counsel coached witnesses during depositions, but does not appear to have contacted the Magistrate Judge for relief. Moreover, Toliver does not set forth any particular answers of the witnesses which he contends should be discounted or the opposite of the answer deemed the truth. *fn1"

 Toliver states that on more than one occasion witnesses were told not to answer, but does not appear to have sought relief from the Magistrate Judge to obtain the answers if relevant. Toliver also fails to set forth the nature of the unanswered questions or what the answers might have shown.

 If a party - even one appearing pro se - could successfully permit discovery to be completed without seeking relief at the time, but effectively complain of deficiencies in the discovery process for the first time in seeking reconsideration of a grant of summary judgment to the adversary, litigation could hardly ever be concluded.

 III

 Toliver complains that the Magistrate Judge had told him not to talk with employees of the defendant outside the deposition room, but never appealed to me from any such ruling at the time. Moreover, he does not show that he could not ask during the deposition any questions he would have asked at some other time. Such an instruction if given by Magistrate Judge Fox might serve a mutually beneficial objective in avoiding potential confrontations between plaintiff and employees of the defendant.

 The weight of authority indicates that Toliver, as a party representing himself and hence functioning as an attorney, would be permitted to approach former but not current employees of defendant directly, outside any formal setting such as a deposition or judicial forum. *fn2" There is no indication that any ...


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