The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff seeks reconsideration of certain aspects of my Order dated March 7, 2003 which resolved the parties' discovery disputes concerning plaintiff's document requests. For the reasons set forth below, plaintiff's application for reconsideration is granted, and upon reconsideration, I modify my rulings as set forth below.
This is an employment discrimination action. Plaintiff is a former employee of defendant TD Securities USA, Inc. ("TD USA"). She alleges that she was denied promotion and ultimately terminated in May 2002 on the basis of her sex, religion and national origin.*fn1 Defendant is a United States subsidiary of the Toronto Dominion Bank ("TDB"). TDB and its subsidiaries are known collectively as the TD Bank Financial Group (the "Group"). As of December 2001, the Group employed almost 44,000 individuals worldwide.
Although plaintiff's request for reconsideration does not specify the discovery requests in issue, it appears that plaintiff is seeking reconsideration of my rulings with respect to document requests 19, 36 and 37 (see Letter of G. Oliver Koppell, Esq., dated March 31, 2003, at 1-2). These requests seek the following:
Request No. 19. All documents and any form of
communication showing discriminatory action to any
individual on the part of Defendant and its affiliates
Request No. 36. All documents showing or containing
information on the number of times in 1998, 1999,
2000, 2001, 2002 individuals were eligible for
promotion to Managing Director, firm-wide.
Request No. 37. All documents showing, or containing
information on the number of Managing Directors
promoted in 1998, 1999, 2000, 2001, 2002 and the dates
of such promotions within the years 1998, 1999, 2000,
2001, 2002 firm-wide.
In my March 7, 2003 Order, I limited discovery to employment decisions made by plaintiff's supervisors, ruling on these requests as follows:
4. Defendant's obligation to produce documents in
response to plaintiff's Document Request No. 19 is
limited to all non-privileged documents concerning
charges of discrimination by individuals other than
plaintiff made against Messrs. Marks and Meijer for
the period from 1996 through 2002 on the basis of
gender, nationality or religion. This aspect of my
Order is without prejudice to a renewed application
from plaintiff for additional discovery supported by
authority demonstrating that such additional discovery
5. Defendant's obligation to produce documents in
response to plaintiff's Document Requests Nos. 36 and
37 is limited to documents concerning individuals who
were supervised by Marks and Meijer between 1998 and
2002. This aspect of my Order is without prejudice to
a renewed application from plaintiff for additional
discovery supported by authority demonstrating that
such additional discovery is appropriate.
Plaintiff now claims that she is entitled to documents responsive to these items from the entire Group. As articulated by plaintiff's counsel:
Since, the requests made by Plaintiff for the
discovery of all statistical evidence relating to [the
Group's] general and systematic employment practices
is important in establishing its discriminatory
practices and culture against Plaintiff's protected
class status, your Honor should grant Plaintiff's
discovery requests in all aspects. "Liberal" discovery
of all statistical information as to all managers at
[the Group] will enable Plaintiff to make out a prima
facie showing of discriminatory intent under her
individual disparate treatment claim. . . .
Accordingly, the law strongly supports Plaintiff's
wish to look at company-wide statistics in order to
determine whether there is a discriminatory culture
and practice at [the Group]. In order to make such a
determination, it is essential to look at statistics
beyond statistics related to the relatively small
number of employees who worked directly for
Plaintiff's supervisors, Messrs. Marks and Meijer.
Indeed deposition testimony indicated that individuals
other than Marks and Meijer at [the Group] were
consulted in connection with an [sic] had a role in
Plaintiff's treatment by an [sic] employment
opportunities at TD USA.
(Letter of G. Oliver Koppell, Esq., dated March 17, 2003, at 10).
Defendant contends that only discovery from TD USA is appropriate and that that discovery should be limited to employment decisions made by plaintiff's immediate supervisors.
There can be no serious dispute that in an individual employment discrimination case such as this one statistical evidence is relevant and admissible. Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 921 (2d Cir. 1981).
Although neither parties' submissions cite the ruling, my own research has disclosed a decision from the Court of Appeals which appears to be dispositive of the dispute. In Hollander v. American Cyanamid Co., 895 F.2d 80 (2d Cir. 1990), plaintiff sued his former employer alleging, among other things, that he had been the victim of age discrimination. During discovery, plaintiff served an interrogatory seeking the identification of (1) each management level employee terminated by defendant after January 1, 1983 who was over the age of 40 at termination and (2) the reason for the termination. Defendant objected to this interrogatory on various grounds, including a claim of overbreadth based on plaintiff's failure to limit his request to the specific facility (the Davis & Geck facility) at which plaintiff had been employed. Both the Magistrate Judge who oversaw discovery and the District Judge sustained defendant's objections to this request. 895 F.2d at 84.
After discovery was completed, the District Court granted defendant's motion for summary judgment dismissing the age discrimination claim, finding that plaintiff had failed to sustain his burden at the third step of the familiar McDonnell Douglas analysis.
The Court of Appeals reversed the dismissal of plaintiff's age discrimination claim, finding that "the district court improperly restricted discovery and thereby prevented [plaintiff] from presenting evidence potentially helpful to his claim of discriminatory discharge." 895 F.2d at 82. The Court of Appeals held that company-wide demographic information might be relevant to show that defendant's non-discriminatory reasons for plaintiff's termination were pretextual. Because the Court of Appeals' decision is controlling here, I quote the relevant passage at length:
[W]e find the district court erred in refusing to
compel American Cyanamid to answer Hollander's
interrogatory. Hollander' s discovery request sought
information regarding the termination of similarly
situated persons, management personnel over forty
years old, working for American Cyanamid. Although the
request goes beyond the narrow confines of the Davis
& Geck Danbury facility in which Hollander worked
and pursues facts pertaining to American Cyanamid's
employment practices more generally, it is relevant to
It is well-settled that an individual disparate
treatment plaintiff may use statistical evidence
regarding an employer's general practices at the
pretext stage to help rebut the employer's purported
nondiscriminatory explanation. See, e.g., McDonnell
Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-26;
Lieberman v. Gant, 630 F.2d 60, 68-69 (2d Cir. 1980);
Logan v. St. Luke's-Roosevelt Hosp. Center,
636 F. Supp. 226, 234 (S.D.N.Y.), aff'd, 805 F.2d 391
(2d Cir. 1986). Evidence relating to company-wide
practices may reveal patterns of discrimination
against a group of employees, increasing the
likelihood that an employer's offered explanation for
an employment decision regarding a particular
individual masks a discriminatory motive. This case
turns on the sincerity of American Cyanamid's claim
that Hollander's abrasive personality justified his
discharge, notwithstanding what Hollander depicts as
American Cyanamid's prior fickle attitude towards this
dimension of Hollander's job performance and the
inability of a company supervisor to detail instances
in which such problems impeded productivity. it is
possible that Hollander's discovery request might
uncover a pattern of older management employees
leaving American Cyanamid under unexplained
circumstances, which might help prove his claim that
American Cyanamid's explanation for his discharge was
Because employers rarely leave a paper trail
— or "smoking gun" — attesting to a
discriminatory intent, See Ramseur v. Chase Manhattan
Bank, 865 F.2d 460, 464-65 (2d Cir. 1989) (citing
cases); Dister v. Continental Group, Inc., 859 F.2d 1108,
1112 (2d Cir. 1988), disparate treatment plaintiffs
often must build their cases from pieces of
circumstantial evidence which cumulatively undercut
the credibility of the various explanations offered by
the employer. Such determinations are, generally
speaking, most competently and appropriately made by
the trier of fact. So long as the plaintiff can
present "solid circumstantial evidence" supporting his
case, see Clements v. County of Nassau, 835 F.2d 1000,
1005 (2d Cir. 1987), he should have the opportunity to
prove his case at trial. The district court's refusal
to compel an answer from American Cyanamid deprived
Hollander of evidence potentially helpful to his
attempt to assemble such a quantum of circumstantial
evidence supporting his argument of pretext.
Accordingly, we reverse the district court's denial of
Hollander's motion to compel and vacate summary
judgment on the discriminatory discharge claim. See
Cedillo v. International Ass'n of Bridge &
Structural Iron Workers, Local Union No. 1, 603 F.2d 7,
12 (7th Cir. 1979) (holding summary judgment improper
in disparate treatment case when district court
limited plaintiff's ability to discover information
relevant to employer's motivation); see also Diaz v.
American Telephone & Telegraph, 752 F.2d 1356,
1362-63 (9th Cir. 1985) (holding summary judgment
"patently inappropriate" when district court restricts
plaintiff's ability to discover evidence necessary to
establish disparate treatment prima facie
case). . . .
895 F.2d at 84-85.
Admittedly, Hollander is not the Circuit's last word on the use of "other-act" or statistical evidence in discrimination cases, and the Circuit has noted on several occasions that the comparisons underlying claims of disparate treatment must be carefully drawn. For example, in Smith v. Xerox Corp., 196 F.3d 358 (2d Cir. 1999), upon which defendant here relies, the Court of Appeals affirmed the dismissal of the plaintiffs' disparate treatment claims, finding that evidence concerning employment decisions made by individuals who were not involved in the decisions in issue was irrelevant: "Because intent is the critical issue, only a comparison between persons evaluated by the same decision-maker is probative of discrimination." 196 F.3d at 370-71. Similarly, in Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997), the Court of ...