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DOOLITTLE v. RUFFO

March 14, 1994

RITA DOOLITTLE, SYBIL K. (PROTHEROE) MERRILL and CINDY J. BLAKESLEE, Plaintiffs,
v.
ANTHONY RUFFO, individually and in his official capacity as Sheriff of Broome County; SUPERVISORY OFFICERS OF THE BROOME COUNTY SHERIFF'S DEPARTMENT, including but not limited to the following persons who are sued individually and in their official capacities: UNDERSHERIFF ROBERT T. NATALE, CAPTAIN GERALD D. MILLER, LIEUTENANT GEORGE VAN WINKLE, LIEUTENANT WILLIAM HANAFIN, SERGEANT KENNETH GREGORY, SERGEANT KENNETH FETTERMAN, and SERGEANT ROBERT E. STROLKA; THE BROOME COUNTY SHERIFF'S DEPARTMENT; THE COUNTY OF BROOME; DEPUTY ROBERT TRUESDELL, individually and in his official capacity as President of Local 2012, Security and Law Enforcement Employees Council 82 and in his official capacity as deputy sheriff/corrections officer; MICHAEL SEMONCO, President of Local 2012, a Labor Organization; and JOSEPH PUMA, President of Security and law Enforcement Employees Council 82, a Labor Organization; Defendants.


McCURN


The opinion of the court was delivered by: NEAL P. MCCURN

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 Sheriff Ruffo, several Supervisory Officers of the Broome County Sheriff's Department, the Broome County Sheriff's Department, and Broome County (hereinafter referred to collectively as the "County Defendants") *fn1" have moved for dismissal of plaintiffs' pendent state claims on the ground that they are insufficiently pled and for partial summary judgment with respect to plaintiffs' federal claims. In addition, the County Defendants have moved to preclude the expert testimony of Dr. Ruth Blizard concerning plaintiff Doolittle's claim of psychological trauma and to preclude any testimony by plaintiffs Merrill and Blakeslee concerning the psychological trauma they allegedly suffered as a result of the County Defendants' actions.

 Plaintiffs oppose these motions in their entirety. In addition, they have cross-moved for summary judgment on two grounds. First of all, they assert that they are entitled to summary judgment because the County Defendants' justification for certain of their actions is pretextual. *fn2" Secondly, plaintiffs argue that the County Defendants are precluded from relitigating the issue of plaintiffs' continuous cell block assignment by the doctrine of collateral estoppel.

 The court will assume the reader's familiarity with the general background of this case and, therefore, will set forth only those facts that are pertinent to the disposition of the present motions. Plaintiffs are current and former sheriff's deputies in Broome County. *fn3" Their second amended complaint (hereinafter referred to simply as "the complaint") contains eight causes of action, only seven of which are the subject of the present motions. *fn4" Their eighth cause of action sets forth various pendent state claims alleging breach of contract, prima facie tort, negligence, and intentional infliction of emotional distress. The first six causes of action allege violations of 42 U.S.C. ┬ž 1983 and Title VII of the Civil Rights Act of 1964. *fn5"

 Plaintiffs rely upon the same set of operative facts to support both their federal and state causes of action. In this regard, plaintiffs allege that from 1982 until the present, the County Defendants have engaged in an invidious pattern of sexual harassment, discrimination, and, since the filing of their complaints, retaliation against them. In their complaint, plaintiffs set forth specific examples of behavior which they contend support their claims. Among these allegations are the following:

 
(1) instances of verbal harassment, particularly in the lunchroom; see Complaint at PP 18, 54;
 
(2) denial of personal and family sick leave privileges that were regularly granted to male deputy sheriffs; see Complaint at PP 19, 35, 58, 75;
 
(3) denial of the assistance of inmate trustees to the female deputy sheriffs while at the same time granting such help to male deputy sheriffs; see Complaint at P 20;
 
(4) denial of training for or assignments to "plum" jobs while being assigned extra duty to the more difficult or menial tasks; see Complaint at PP 21, 23, 25, 36, 55, 56;
 
(5) requirement that female deputy sheriffs conduct full strip searches of male inmates even when male deputy sheriffs were available to conduct such searches; see Complaint at PP 22, 53;
 
(6) stationing of female deputy sheriffs in the female cell bock without the ability to call for assistance if a dangerous situation arose; see Complaint at P 24;
 
(7) requirement that female deputy sheriffs bid separately from male deputy sheriffs for shifts; see Complaint at P 16;
 
(8) arbitrary and capricious denial of bereavement leave; see Complaint at P 76;
 
(9) permanent or continuous assignment to the same cell block or to the same shift; see Complaint at PP 73, 74. *fn6"

 Although it is entirely proper to rely upon the same set of operative facts to support multiple causes of action, the manner in which plaintiffs chose to draft their complaint leaves much to be desired. As the court noted in its January 12, 1990, Memorandum-Decision and Order in reference to plaintiffs' first amended complaint,

 See Memorandum-Decision and Order dated Jan. 12, 1990, slip op. at 4 n.3 (emphasis added).

 Plaintiffs' second amended complaint has not cured these drafting defects. Thus, once again the County Defendants and the court find themselves with the unenviable task of not only trying to determine which allegations pertain to which defendants but also trying to ascertain the exact nature of plaintiffs' claims. Despite this confusion, however, the court will attempt to resolve the issues raised by the present motions.

 DISCUSSION

 I. Motion to Preclude Testimony Concerning Psychological Trauma

 A. Expert Testimony

 As with other aspects of this case, discovery has not been free of problems. This particular motion concerns Ms. Doolittle's allegations that she suffered psychological trauma as a result of the acts of the County Defendants. Dr. Blizard, a psychologist, began treating Ms. Doolittle for this psychological trauma in April 1989. See Slocum Affidavit, Exhibit 2 (Letter of Dr. Blizard dated September 11, 1992). In July 1992, the County Defendants secured a medical release from Ms. Doolittle which they forwarded to Dr. Blizard requesting all medical records in her possession regarding her treatment of Ms. Doolittle. See id. at PP 4, 5. Despite numerous written and telephonic requests over the next three months for compliance with this release, Dr. Blizard did not respond. See id. at P 6. As a result, on October 1, 1992, Attorney Slocum sent a letter directly to Dr. Blizard in which he stated that "if the records are not received, I will have no choice but take [sic] appropriate action. The Federal Rules of Procedure authorize me to serve a subpoena duces tecum requiring you to submit to questioning under oath and to produce all your records." See id. at PP 7, 8 and Exhibit 1 (Letter from Slocum to Dr. Blizard dated October 1, 1992). On October 7, 1992, the County Defendants received a report from Dr. Blizard but not the records they had requested. See id. at P 9.

 On October 6, 1992, the County Defendants served a demand for an independent medical examination of Ms. Doolittle by Dr. Wolkoff which was to take place on October 19, 1992. See Slocum Affidavit at P 12. At the request of plaintiffs' counsel, the appointment was rescheduled for October 27, 1992. See id. at P 13. Thereafter, plaintiffs' counsel advised the County Defendants that Ms. Doolittle would not attend the examination. See id. at P 14. As a result of this refusal, the County Defendants, by letter dated October 29, 1992, sought and obtained an order directing Ms. Doolittle to submit to an examination by Dr. Wolkoff on November 11, 1992, four days before the cutoff for discovery in this matter. See id. at PP 15, 16.

 Ms. Doolittle met with Dr. Wolkoff on November 11, 1992. On November 17, 1992, the County Defendants spoke with Dr. Wolkoff and learned that his examination was incomplete and that Ms. Doolittle had indicated to him that she had been receiving treatment from Dr. Blizard for matters such as low self-esteem and obesity which she acknowledged were not related to her claims against the County Defendants. See Slocum Affidavit at P 17. According to the County Defendants, this was the first time they had any knowledge that Dr. Blizard had been treating Ms. Doolittle for anything other than the psychological trauma she allegedly suffered as a result of the acts of the County Defendants. See id. Dr. Wolkoff also noted that he would need to have access to any and all reports or notes that Dr. Blizard had taken during the three plus years that she had counseled Ms. Doolittle and would need to see Ms. Doolittle again in order to draw any conclusions. See id., Exhibit 3 (Affidavit of Dr. Wolkoff at P 11).

 The County Defendants contend that they did not immediately seek an extension of the discovery deadline because on November 8, 1992, plaintiffs had requested a settlement conference which was scheduled for November 24, 1992. See id. at P 22. After this conference, which proved to be unsuccessful, the County Defendants moved on December 8, 1992, to extend discovery to depose Dr. Blizard and to return Ms. Doolittle to another appointment with Dr. Wolkoff. See id. at P 28. The court denied this request. See id. at P 29. Given these circumstances, the County Defendants argue that they are being

 
deprived of an opportunity to seek an independent evaluation and if necessary, put evidence before the trier of fact of an absence of psychological trauma attributed to the alleged defendant's [sic] conduct; the County of Broome, the Sheriff's Department and the deputies in their official and individual capacities, are further prejudiced by their opportunity to review the plaintiff's evidence of psychological trauma before trial and will thereby be precluded from preparing an effective cross-examination of Dr. Blizzard [sic].

 See Slocum Affidavit at P 31.

 Plaintiffs do not dispute the County Defendants' assertion that their first knowledge that Dr. Blizard was treating Ms. Doolittle for problems other than those caused by the County Defendants resulted from their conversation with Dr. Wolkoff on November 17, 1992. Nor do they deny the fact that Dr. Blizard's response to the County Defendants' request for medical records was at best late, if not entirely unresponsive. Their only response to the County Defendants' request is that they should not be held responsible for the County Defendants' failure to depose Dr. Blizard during discovery or to request an extension of time for the same. See Plaintiffs' Memorandum of Law at 41-42.

 Neither party is entirely blameless in this dispute. Certainly, the County Defendants could have conducted discovery in a more expeditious manner. Nevertheless, considering the County Defendants' unsuccessful and good faith efforts to obtain Dr. Blizard's medical records in an attempt to avoid the time and expense of a formal deposition, the initial refusal of Ms. Doolittle to submit to Dr. Wolkoff's examination, and the new information obtained as a result of Dr. Wolkoff's examination of Ms. Doolittle, plaintiffs must be held partly to blame for the present situation. Under these circumstances, therefore, the court will not preclude Dr. Blizard from testifying at trial concerning her treatment of Ms. Doolittle for psychological trauma. However, allowance of such testimony is contingent upon the parties' compliance with the following instructions. Plaintiffs are to notify the court in writing within 15 days of the date of this memorandum-decision and order whether or not they intend to have Dr. Blizard testify at trial. If they do so intend, the court will reopen discovery for 90 days, limited to the issue of Dr. Blizard's treatment of Ms. Doolittle. During this period, the parties are to schedule the deposition of Dr. Blizard at which time she will produce the medical records concerning her treatment of Ms. Doolittle, as the County ...


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